Neighbors In Need

I. Summary

Since 2005 an
estimated one to 1.5 million Zimbabweans have fled across the border into South Africa,
the region's economic power. They have run from persecution, for the majority in
the form of targeted, mass, forced evictions destroying homes and livelihoods,
and from economic
destitution as the Zimbabwean economy collapses. Recent refugees fleeing
the brutal crackdown on political opponents of President Robert Mugabe in the
aftermath of the March 2008 Zimbabwean elections are the latest wave.

In South Africa
they face a vulnerable and uncertain situation. Without documents, they have no
right to work and have limited rights and access to social assistance such as
health care and housing. Liable to arrest and deportation at any time, they
live in permanent insecurity. Due to South Africa's dysfunctional asylum
system and unlawful deportation practices, many of the tens of thousands that
have applied for asylum are at constant risk of being refouled-unlawfully returned.

These are
not voluntary economic migrants, even if for many economic destitution is one
of multiple reasons for crossing into South Africa. Their presence in South Africa underlines a failure of foreign
policy-the failure to use South Africa's
leverage effectively to address the brutal human rights violations and failed
economic policies in Zimbabwe
causing their flight. Their undocumented status and vulnerability in South
Africa, and the increasing public resentment against them, represents a failure
of domestic policy-the failure to develop and implement a legal, comprehensive,
and workable policy to address the reality of the existence of Zimbabweans in
South Africa.

The choice
the South African government faces is difficult and stark. Either it continues
to breach its fundamental obligations under international law and ignores the
reality of the hundreds of thousands of undocumented Zimbabweans on its
territory. To do this means allowing many to be mistreated by police, abused
and exploited by employers, while many others are removed haphazardly, arbitrarily,
expensively, and ineffectively to Zimbabwe (most returning back over the border
within days or weeks).

Or the
government can choose to regularize their stay.

This report
calls on the South African authorities to adopt a broad-based policy aimed at
regularizing the presence of Zimbabweans in South Africa. This should allow Zimbabweans
to enter South Africa
legally, should regularize their status once in country, should end their
deportation, and should give them the right to work in South Africa on a temporary and
reviewable basis. Under the 2002 Immigration Act, the minister of home affairs could
establish a new temporary permit scheme called "temporary immigration exemption
status for Zimbabweans" (TIES).

The fact of
public resentment against foreigners should not deter the South African
government from fulfilling its legal obligations and doing what is right. This
report outlines eight arguments why regularizing the status of Zimbabweans
makes both legal and practical sense:

·Regularization
would allow South Africa
to meet its fundamental international legal obligation not to unlawfully deport
Zimbabwean asylum seekers.

·Regularization
would unburden the asylum system of unnecessary claims.

·Regularization
would protect Zimbabweans during entry and stay in South Africa, including against xenophobic violence at the
hands of South African citizens.

·Regularization
would offset the cost to the South African taxpayer of ineffective deportation
and wasteful use of police resources.

·Regularization
would provide data on hundreds of thousands of currently undocumented
Zimbabweans.

·Regularization
would help the authorities to enforce employers' minimum-wage obligations and
create a level playing field on which South African nationals could compete
fairly for jobs.

·Regularization
leading to the right to work would address Zimbabweans' humanitarian needs in South Africa,
which would reduce the pressure on South African social assistance programs.

·Regularization leading to the right to work
would help Zimbabweans support desperate families remaining in Zimbabwe, thereby possibly reducing the number
of Zimbabweans fleeing their country for South Africa.

The fact of
the matter, as this report shows, is that repression in Zimbabwe has a direct impact on South Africa.
As resentment among the urban poor against foreigners has grown-with
Zimbabweans becoming a prime target of xenophobic violence which has killed
dozens, injured hundreds and displaced tens of thousands of foreigners-this
includes impact on South African social harmony, public safety, and the rule of
law.

Accordingly,
the South African government, working closely with the Southern African Development
Community (SADC), the African Union (AU), and the United Nations (UN), also has
every reason to urgently identify a fundamentally more effective political
strategy than has been seen over recent months to address respect for human
rights and the rule of law in Zimbabwe
itself. This is not an alternative to regularizing the status of Zimbabweans in
South Africa-the legacy of
repression in Zimbabwe, including
Zimbabweans fleeing to South
Africa, will take time to overcome, even if
measures to address it are implemented immediately and effectively.

Why
are hundreds of thousands of Zimbabweans crossing to South Africa?

Testimonies from Zimbabweans in South Africa presented in this report
explain in personal and individual terms how the Zimbabwean government's political
actions and the country's decline have led to their economic destitution and desperation,
and have ultimately forced them to leave the country to survive the political
and economic crisis.

Political repression has included the direct, violent
targeting of opposition supporters, policies resulting in the dislocation of
hundreds of thousands of citizens, and an assault on the informal trading
sector. These policies have resulted in severe social and economic disruption
for massive numbers of people.

Until the 1990s, Zimbabwe
was one of the wealthiest countries in sub-Saharan Africa.
With the collapse of much of the formal economy after 2000, the informal
sector expanded and by 2005 employed three-to-four times the number of people
employed in the formal sector. Meanwhile, in the late 1990s, the Movement for
Democratic Change (MDC) began to emerge as a nascent political alternative to the dictatorial
Zimbabwe African National Union-Patriotic Front (ZANU-PF) regime led by Robert
Mugabe, claiming support in various parts of the country, including many
high-density suburbs.

Always authoritarian when facing political opposition, the
Zimbabwean government became even more repressive following the emergence of
the MDC. During election periods (2000, 2002, 2005, and 2008), large numbers of
political activists have been assaulted and displaced.

In 2005, in
a forcible eviction action called Operation
Murambatsvina (which translates as "Operation Clear the Filth"), the Zimbabwean government destroyed
the homes and livelihoods of about 700,000 people (or 6 percent of the
Zimbabwean population) living in the high-density suburbs of Zimbabwe's cities. Because the
evictions caused massive economic destitution and had a huge impact on the
broader Zimbabwean economy, the evictions triggered the escalation of the
contemporary influx of Zimbabweans to South Africa.

Zimbabwe's
high-density suburbs were areas of significant support for the MDC. As this and
other reports describe, the evictions were almost certainly carried out for
political reasons.

The eviction campaign destroyed tens of thousands of houses
and thousands of informal business structures. A further 1.7 million people
were indirectly affected.A strictly-enforced
government ban on informal trading after the evictions resulted in a severe
crisis for individuals engaged in small enterprises and vending.

Though it is not known how many victims of Operation Murambatsvina
have crossed the border, it is possible that tens of thousands of breadwinners
from targeted families rendered destitute by the government's action have come
to South Africa
to help their families survive. Interviews conducted by Human Rights Watch for
this report identified dozens of such people.

The brutal crackdown that followed the March 2008
parliamentary and disputed presidential elections to prevent opposition
supporters from voting the same way in the presidential runoffs has caused
further displacement, with thousands of MDC activists and supporters fleeing
from rural areas, some of them across the border to South Africa.These most recent asylum
seekers arriving in South
Africa are fleeing persecution in the form
of torture, beatings, arbitrary arrest, and detention.

Like those
targeted for their political activities, people targeted during the 2005
evictions have a strong claim for refugee status under international refugee
law. And Zimbabweans fleeing generalized destitution caused by Mugabe's ruinous
policies cannot be regarded as voluntary migrants merely seeking financial
advantage; the gravity of the current economic crisis suggests that almost all
are leaving involuntarily.

This report
presents the testimony of those evicted and those fleeing generalised economic
deprivation. Without fail these people told Human Rights Watch that they were
compelled to leave Zimbabwe
and looked to South Africa
as their last option for survival.

In 2008 Zimbabwe
has one of the world's "fastest shrinking economies" and, by far, the world's
highest rate of inflation, estimated by the Zimbabwean state statistical office
at 100,000 percent. The real gross domestic product has shrunk for nine consecutive years, and the engine
of Zimbabwe's
economy, agriculture, has contracted sharply. The proportion of the population
living below the poverty line increased from 25 percent in 1990 to 83 percent
in 2007. Throughout 2007 and in 2008 unemployment has been estimated at 80
percent.

The collapse in food production has caused a serious food
deficit, affecting 4.1 million Zimbabweans (more than one-third of the
population) in early 2008. Until June 4, 2008, food assistance programs by
international agencies such as the World Food Program were expected to meet all
of the assessed needs in rural areas, though only one-third of the one million
urban Zimbabweans estimated to be food insecure were receiving formal food
assistance. On June 4, 2008, the Zimbabwean authorities announced a complete
halt to the work of all aid agencies in Zimbabwe, including those
distributing emergency food rations, alleging that agencies had been using
their programs to campaign for the opposition party. This followed President
Mugabe's announcement on May 29, 2008, that Zimbabwe
had had to import 600,000 tons of maize to ease food shortages, and warnings
that in the coming 12 months Zimbabwe's
cereal production will cover only 28 per cent of the populations' needs.

The health sector in general has been plagued with
difficulties providing basic services. Shortages of key drugs are frequent and
massive emigration of medical personnel has occurred. Currently, 50 percent of
health care positions, including 88 percent of primary health care nurse
positions, are vacant. Due to regular increases in fees, the cost of health care
has increased.A dramatic drop
in a broad range of health indicators reflects reduced access to health care. Maternal
mortality rose from 283 per 100,000 live births in 1994, to1,100 per 100,000 live births in 2005.
Women's life expectancy has fallen from 56 years in 1978, to 34 years in 2006.

As of December 2007 an estimated 1.7 millionout of 13 million Zimbabweans were
living with HIV, sharply increasing the burden on the health care system. Over
70 percent of admissions to medical wards in Zimbabwe's major hospitals are
patients with AIDS-related diseases. About
350,000 of the 1.7 million people living with HIV need anti-retroviral
treatment (ART), and 600,000 need care and support. While medical care
provided to People Living with HIV/AIDS (PLWHA) has increased in the past few
years, it still falls far short of the needs. Only about 90,000 Zimbabweans
needing ART are currently being treated with anti-retroviral medicines and
reports have indicated that some Zimbabweans are fleeing to neighboring
countries because of their inability to access ART.

The 2007 Global Tuberculosis Control Report from the World
Health Organization ranks Zimbabwe
among 22 countries with the highest tuberculosis (TB) burden in the world. Zimbabwe
has six times more TB cases than it did 20 years ago, and an estimated
two-thirds of Zimbabweans with TB are also infected with HIV. Cholera outbreaks have repeatedly occurred in
recent years, as the country's water and sanitation systems have broken down. In
December 2007 459 cases of cholera were reported in two high-density suburbs of
Harare. In Bulawayo, 11 people died
from cholera and more than 300 were hospitalized in 2007. Electric power outages and shortages of
chemicals to treat water have interrupted water supplies and compelled
individuals to drink untreated water contaminated with fecal matter. At
least 6 million people in Zimbabwe-about half the population-do not have access to clean
water or sanitation.

The South
African government and international actors' recognition of the involuntary
nature of Zimbabweans' displacement is a necessary step to identifying the most
effective response to their presence in South Africa.

South Africa's response

The influx
of more than a million destitute and hungry Zimbabweans has placed an enormous
burden on South Africa.
This has resulted in some excessive reactions by the authorities, such as the police
raid in January 2008 on the CentralMethodistChurch
in Johannesburg,
which shelters over 1,000 homeless Zimbabweans. It has also lead to unlawful
practices such as rapid deportations by the South African Police Services in
the border region.

However,
generally the response of the South African authorities has been toturn a
blind eye to the presence of Zimbabweans, remaining silent on why they have
come to South Africa in such
high numbers and on the scale of the human rights violations in Zimbabwe
that has driven them. Even during the mass evictions of 2005 affecting 2.4
million people, and the post-March 2008 election violence, the South African
government has not set out a clear public policy with its assessment of the
reasons for the influx or with a frank admission of the challenges it faces in
responding.

Nor has the
government responded in a concerted way to the significant and almost certainly
increasing humanitarian needs of particularly vulnerable Zimbabweans in South
Africa, such as unaccompanied children and the very sick (including PLWHA).

Instead it
has adopted a business-as-usual approach, treating Zimbabweans like any other
foreign nationals by requiring them to go through standard immigration procedures,
or to apply for asylum in a system incapable of dealing with the number of applications.
As there are only limited possibilities for obtaining work permits in South
Africa, many of the almost 20,000 Zimbabweans who make asylum claims every year
do so because they have no other option for legally working and legally
remaining in S0uth Africa. Consequently, the asylum system is burdened with
potentially thousands of claims that could be better processed under an
alternative immigration policy.

The
government's policy of deporting some of the hundreds of thousands of
undocumented Zimbabweans does not reduce the number of Zimbabweans in South Africa.
It does not deter illegal entry and is highly costly to the South African
taxpayer, a fact that has increasingly been recognized at the highest levels of
government. Despite this recognition, an estimated 200,000 Zimbabweans were
deported in 2007. Most returned to South Africa within days or weeks.

Echoing the
media's often emotive language used to describe Zimbabweans in South Africa- "a human tsunami," "illegal immigrants,"
or "border jumpers"-the government has suggested that Zimbabweans in South Africa
are all voluntary economic migrants. President Thabo Mbeki has referred to them
as an "inflow of illegal people." Other South African officials have made
various statements including "there is no war in Zimbabwe," implying that
Zimbabweans cannot possibly have valid asylum claims, that they voluntarily
leave their country, and that Zimbabweans "are economic migrants" or "not real
refugees."

This
business-as-usual approach, which has continued despite the April 2008 campaign
of violence, coupled with the tendency to describe all Zimbabweans in identical
terms (as voluntary economic migrants), allows the government to ignore three
awkward interrelated questions. What are South
Africa's legal obligations towards Zimbabweans in South Africa?
What should South Africa
do to meaningfully respond to their presence? How can the South African
government more effectively address the human rights violations and repression
causing their flight?

South Africa's legal obligations to recognize and not
deport Zimbabwean refugees from South
Africa

South
Africa has specific legal obligations not to deport Zimbabweans who are
lawfully present: those with temporary residence permits (visitors and workers,
including farm workers, in the tens of thousands) and those who have claimed
asylum and who await a determination of their status or who have been
recognized as refugees (44,423 Zimbabweans claimed asylum in South Africa
between 2005 and 2007; within the approximately 5,000 new asylum applications
processed each year, the government recognised 241 Zimbabweans as refugees
between 2004 and 2006).

Under international refugee law, those targeted under Operation
Murambatsvina have strong claims for refugee status, but until now the
South African asylum system has not considered them to be protected under the
1951 Refugee Convention.

To successfully claim refugee status under the 1951 Refugee
Convention asylum seekers need to show that they cannot be sent back to their country
because they have a well-founded fear of being persecuted on account of their
"race, religion, nationality, membership of a particular social group or
political opinion." Persecution is generally regarded as a "serious harm" that
the government is responsible for causing or for being unwilling or unable to
prevent.

Human Rights Watch believes that Zimbabweans who were
targeted by the forced evictions are refugees. This is because their rights to
shelter, work, food, and in many cases education and health care were and
continue to be violated to such an extent that they would suffer serious harm
if returned to Zimbabwe, and because the Zimbabwean government, responsible for
the original rights violations, continues to fail to protect them against the effects
of those rights violations.

Zimbabweans targeted by the evictions fear being persecuted because
the Zimbabwean government sees them as a political threat. This is because the
government views poor Zimbabweans living in high-density suburbs as holding
"political opinions" in opposition to it and because it views those suburbs as
fertile political ground for fomenting general political dissent.

This report argues that the South African government should
ensure that the asylum system recognizes that people targeted by the mass
forced evictions have valid asylum claims and that its refugee status
determination staff is adequately trained to consider such claims in an
efficient and legally coherent way.

Ten years
after the 1998 Refugees Act was enacted, South Africa's asylum system and
deportation practice continue to be dysfunctional. Asylum procedures create
significant obstacles for Zimbabweans at every stage of the application
process, particularly in terms of gaining initial access to the system.

These
obstacles often violate the most fundamental provisions of South African
refugee law. Deportation practice, including deportation focusing specifically
on Zimbabweans in the border areas, is often unlawful. There have been
documented violations of the most basic principle of international refugee law,
the principle of non-refoulement, to which South
Africa is bound as a party to the 1951 Refugee
Convention, and the 1969 OAU Convention Governing the Specific Aspects of
Refugee Problems in Africa. A person's right not to be refouled is
the right not to be forcibly returned to a place where she would face a threat
of persecution or a real risk of torture or cruel, inhuman or degrading
treatment or punishment.

The
dysfunctional nature of the asylum system and of current deportation practices in
South Africa
means that there is a generalized high risk of Zimbabwean asylum seekers being
deported. Under the principle of non-refoulement
it is unlawful to deport an asylum seeker because the claim is yet to be
processed.

Key to improving the system and thereby to prevent refoulement is resolving the ongoing
challenge of a large backlog of asylum cases. In September 2007 the South
African Department of Home Affairs (DHA) confirmed an asylum backlog of 76,400
cases filed before August 1, 2005. Progress made in reducing this old backlog risks
being rendered meaningless by the number of new applications. With a total of
105,000 cases lodged on or after August 1, 2005, still not dealt with by the
end of 2007, a new backlog is in the making. Until the asylum system is able to
find a way of dealing more efficiently with its caseload, the obstacles faced
by Zimbabwean asylum seekers and the related risk of refoulement will continue.

South Africa's legal obligations to address assistance
needs of Zimbabweans in South
Africa

The South
African government not only faces the presence of large numbers of Zimbabweans
on its territory, but also a Zimbabwean population with serious assistance
needs. This is not a problem of South
Africa's making. Meeting the needs of
Zimbabweans in South Africa is a global responsibility and donor countries
should support South Africa to enable it to meet in particular the humanitarian
needs of the most vulnerable-the sick, including PLWHA, children, and the
elderly.

South
African law clearly provides that everyone in South Africa, regardless of
nationality or immigration status, enjoys a number of rights which address such
needs: access to free emergency health care, including to ART for people infected
with HIV, to other forms of fee-based health care, and to basic education.

Recognized
refugees have a number of additional rights clearly spelled out in South
African law and developed by the courts that ought to guarantee them access to
certain types of social assistance. South African courts have yet to
unequivocally establish the rights of asylum seekers to certain forms of
assistance such as housing, food, water, and social security, but asylum
seekers do have the right to study and work. Undocumented Zimbabweans, however,
do not have the right to work or other rights to social assistance, except
access to emergency and basic health care.

Refugees
and asylum seekers continue to face serious obstacles in gaining access to many
types of assistance to which they are legally entitled, including access to
health care, such as ART. Asylum seekers are often rejected by prospective
employers who appear not to be aware of their right to work. Undocumented
Zimbabweans are unable to access medical treatment and face various other
assistance needs. Nearly all Zimbabweans, documented or undocumented, have
desperate accommodation needs. In 2007 many South African charities reported an
increase in the number of highly vulnerable Zimbabweans coming to their doors.

The May 2008
violence against tens of thousands of Zimbabweans and other foreign nationals,
which follows many similar isolated incidents throughout 2007 and early 2008,
has drawn dramatic attention to their vulnerability and needs.

The need for a broad-based policy for all
Zimbabweans in South Africa

The crisis
in Zimbabwe, including the
ongoing government-orchestrated violence in 2008, means that hundreds of
thousands of Zimbabweans will remain in South Africa for the foreseeable
future. Many more will join them. With the vast majority having no hope of
regularizing their stay, they will continue to enter and remain in the country
without documentation in the hope of finding work to help themselves and their
families in Zimbabwe
survive.

Human
Rights Watch believes that a broad-based policy aimed at regularizing the
presence of Zimbabweans in South
Africa is the most appropriate legal and
practical way forward. The policy's components should include: a) allowing Zimbabweans
to enter South Africa
legally; b) regularizing their status once in country; c) ending the
deportation of Zimbabweans; and, d) giving Zimbabweans the right to work in South Africa
on a temporary and reviewable basis.

There are
at least eight legal and practical arguments for such an approach:

First,
regularization would allow South
Africa to meet its fundamental international
legal obligations. Despite recent initial steps to reform the asylum system, there
is no practical prospect of South
Africa's asylum and deportation systems improving
in the short term. Therefore, Zimbabwean asylum seekers face the risk of being
subjected to refoulement-forced
return to persecution. These include possibly thousands of Zimbabweans who wish
to claim asylum in light of the political violence in Zimbabwe in 2008 and people
targeted by Operation Murambatsvina,
if they claim asylum in the future. Because the current asylum and deportation
systems currently fail to adequately identify and protect many Zimbabwean
asylum seekers, the only way to end their unlawful deportation and to ensure that
South Africa respects its
obligations under international law is to end deportation of all Zimbabweans in
South Africa.

Second,
regularization would unburden the asylum system of unnecessary claims. Because
many Zimbabweans access the asylum system as the only way to regularize their
legal status and to obtain the right to work in South Africa, regularizing their status
and giving them the right to work would help reduce the number of claims in the
asylum system.

Third,
regularization would protect Zimbabweans during entry and stay in South Africa, including against xenophobic
violence at the hands of South African citizens. When crossing informally into South Africa,
large numbers of Zimbabweans become victims of serious criminal offences,
including murder and rape, committed by violent Zimbabwean people smugglers. Once
in South Africa,
Zimbabweans' undocumented status exposes them to violence at the hands
of South African citizens who almost certainly believe that their vulnerable
victims won't report them to the police. Zimbabweans' undocumented status also
exposes them to exploitation by employers and to harassment by the South
African police. Helping Zimbabweans enter through formal border crossings would
attenuate predatory practices at the border. Ensuring Zimbabweans are
documented and can work would significantly reduce their vulnerability to xenophobic
violence at the hands of criminals, to exploitation by employers, and to
corrupt police practices.

Fourth, regularization
would offset the cost to the South African taxpayer of ineffective deportation
and wasteful use of police resources. The vast majority of undocumented
Zimbabweans are not identified or deported, and those who are-up to 200,000 a
year or more-return to South
Africa within days or weeks.

Fifth, regularization
would provide data on hundreds of thousands of currently undocumented
Zimbabweans. The South African government would know how many people are in the
country, who they are, and where they live and work. In the event of problems
that may arise whilst they are covered by the status or when the status comes
to an end, the government would be able to identify people it registers under
the proposed scheme.

Sixth, regularization would help the authorities to enforce
employers' minimum-wage obligations and create a level playing field, on which
South African nationals could compete fairly for jobs. This is all the more
important given that much of the xenophobic discourse reported in the South African
press focuses on allegations that Zimbabweans "steal" South African citizens'
jobs.

Seventh,
regularization leading to the right to work would address Zimbabweans'
humanitarian needs in South
Africa, which would reduce the pressure on
South African social assistance programs.Because of their undocumented status, Zimbabweans in South Africa
are often unable to find or keep jobs, which increases their humanitarian
needs. Granting Zimbabweans the right to work in South
Africa would help them fend for themselves, which would in
turn reduce the number of desperate Zimbabweans seeking help from South Africa's
social assistance programs.

Finally, regularization leading to the right to work would
help Zimbabweans support desperate families remaining in Zimbabwe, thereby possibly reducing the number
of Zimbabweans fleeing their country for South Africa. The right to work
would enable Zimbabweans to send desperately needed basic foodstuffs to their
families in Zimbabwe.
This, in turn, might reduce the number of Zimbabweans, especially the most
vulnerable-children,
the elderly, PLWHA-coming
to South Africa
in search of work and food.

Given the
large number of Zimbabweans believed to be in South Africa, the similar needs
faced by all of them, and the operational challenges involved in any response,
Human Rights Watch believes that the government should adopt the simplest, fairest,
and most expedient approach. Human Rights Watch, therefore, urges the
government to use its discretionary powers under existing immigration law to
grant Zimbabweans in South
Africa a limited number of the rights for a
limited period of time and under specific terms and conditions. Under
the 2002 Immigration Act, the minister of home affairs could establish a new
temporary permit scheme called "temporary immigration exemption status for
Zimbabweans" (TIES).

In practice the scheme would allow Zimbabweans to enter South Africa followed by regularization at
registration centers for all new arrivals and for all Zimbabweans already in South Africa.
On proving their nationality, Zimbabweans would receive a permit which would
clearly state that the holder cannot be deported and has the right to work for
a limited period of time. To ensure that South African citizens understand the
need for such a temporary permit scheme, a government information campaign could make clear that hundreds of
thousands of Zimbabweans are already working without work permits in South Africa
and that officially granting them the right to work would help to regulate
their access to the job market and help control wages.

South Africa's role in addressing the situation, including human rights violations,
in Zimbabwe

Over the past two years the deteriorating situation in Zimbabwe
has brought regional concern to a sharper focus. In March 2007 SADC mandated
President Thabo Mbeki to mediate talks between the opposition MDC and Robert
Mugabe's ZANU-PF, with the objectives of securing agreement on
constitutional reform ahead of the March 2008 elections and ending the economic
crisis.

During its one year as mediator, the South African
government repeatedly championed a
"quiet diplomacy" approach, avoiding statements that could be construed as
critical of President Mugabe, and leading to widespread criticism that it was
not sufficiently assertive. The government failed, for example, to hold
President Mugabe accountable to undertakings made during the talks. In line
with SADC's deafening silence on human rights abuses committed in Zimbabwe
for the past eight years, the South African government also repeatedly failed
to condemn the serious rights violations carried out by the Zimbabwean security
forces.

The
mediation initiative appears to have singularly failed to leverage change in
President Mugabe and ZANU-PF's repressive practices. The fact of the violent
crackdown that followed the parliamentary and presidential elections in March
2008 demonstrates the failure to send a clear message to President Mugabe that
there would be consequences for failing to reach agreement with the MDC on how
best to ensure free and fair elections.

As the
ZANU-PF organized violence has intensified building up to the June 27, 2008
presidential runoff elections, South
Africa's response has remained deeply
inadequate. In contrast to other regional leaders, President Mbeki has
refused to acknowledge the serious nature of the situation, for example,
failing during a visit to Harare on May 9 to condemn or call for an end to the
violence, even after he received a preliminary report on the violence from a
group of South African former army generals he had appointed to investigate the
situation.

These different positions have prevented SADC and the AU
from taking concerted and decisive action to intervene in the crisis which has,
in turn, emboldened the government of Zimbabwe to turn state institutions
even more aggressively against Zimbabweans seeking democratic change and an end
to the destruction of their country's economy.

The South African government must abandon its discredited
"quiet diplomacy" approach towards Zimbabwe and must urgently play a
central role within the AU and SADC to pressure the Zimbabwean authorities to
end the current violence and their destruction of the democratic process.

II. Methodology

This report is based
on research conducted in South Africa
between 13 October and 12 November 2007, and on research conducted in Zimbabwe
between 11 and 19 February 2008.

In South Africa, in-depth interviews with 99
Zimbabweans (56 female and 43 male) were conducted by a Human Rights Watch
researcher and by an independent South African legal consultant, students from
the University of Cape Town, and staff working with a legal assistance
NGO in Pretoria,
all of whom worked closely with the researcher. Interviews were conducted in Cape Town, Johannesburg, and
Pretoria, and in rural areas close to Cape Town and Pretoria.
The locations were chosen because most Zimbabweans in South Africa are believed to live in or near to
one of South Africa's
cities.

Some interviewees
were identified one or two days in advance by South African and Zimbabwean
civil society groups providing assistance or legal services to Zimbabweans.
Others were identified on the day of the interviews by Human Rights Watch. Interviewees
were identified and selected by explaining to groups of Zimbabweans that Human
Rights Watch wanted to speak with people who had faced difficulties in Zimbabwe
relating to food, shelter, employment, health care, and education, and to
people who had been affected by Operation
Murambatsvina (the 2005 evictions). Interviews were conducted with a wide
range of profiles including single men and single women (with and without
extended families in Zimbabwe), couples with or without children, married men
and women who had left their partners and/or children in Zimbabwe, and
female-headed households with and without their children in South Africa.
Interviews were conducted individually in confidential settings, in English,
and lasted an average of 45 minutes.

Human Rights Watch
conducted a further 28 interviews with government officials, members of the
Refugee Appeals Board, UNHCR, South African lawyers, local and international
NGOs, and academics.

In Zimbabwe, two Human Rights Watch researchers
conducted 26 interviews (18 female and 8 male) with Zimbabweans in Harare and Bulawayo.
Interviewees were identified with the assistance of a number of local NGOs
providing assistance to people displaced by Operation
Murambatsvina and to others in need of social assistance. Interviews
were conducted individually in confidential settings and lasted an average of
45 minutes. Almost all were conducted in English, though a small number were
conducted in English and Shona using local Shona speakers as interpreters.

In Harare
and Bulawayo,
Human Rights Watch conducted a further 20 interviews with UN staff and with
staff from local and international NGOs.

Human Rights Watch
did not publish in the report the names of Zimbabweans who were interviewed
because of a fear that the disclosure of their identity might expose them to
adverse consequences.

III. Recommendations

To the Government of South Africa

In relation to all Zimbabweans in South
Africa

·Use section 31(2)(b) of the 2002 Immigration Act
to introduce a new "temporary
immigration exemption status for Zimbabweans" (TIES) which allows Zimbabweans
to legally enter South Africa, regularizes their status, ends deportations of
Zimbabweans, and grants them the right to work in South Africa.

·Cooperate closely with the United Nations High
Commissioner for Refugees (UNHCR) to put in place a registration system for the
new status.

·Ensure that all deportations of Zimbabweans are
stopped pending implementation of this new status.

·In accordance with the South African
Constitution, ensure that all Zimbabweans in need of emergency and basic
medical care, including those in need of anti-retroviral treatment (ART) and
tuberculosis (TB) treatment, have access to such care.

·Ensure that the most vulnerable Zimbabweans,
such as unaccompanied children, the elderly, and the most sick (including the
most vulnerable PLWHA) are provided with other forms of emergency assistance
such as food and social welfare assistance.

·Engage
in a public information campaign to demonstrate to the South African people
that:

-Zimbabweans'
decision to leave their country and come to South Africa is fundamentally
involuntary;

-the deportation of Zimbabweans is ineffective
and a waste of tax payers' money;

-the simplest, fairest, and most effective way to
address the humanitarian needs of Zimbabweans in South Africa is to allow Zimbabweans
to fend for themselves through giving them the right to work; and that

-a regulated Zimbabwean work force will not
undercut wages and opportunities for South African workers.

·End
its discredited "quiet diplomacy" approach pursued since March 2007 as SADC-sponsored
mediator between the MDC and ZANU-PF, and urgently play a central role
within the African Union (AU) and SADC to pressure the Zimbabwean authorities
to end the current violence and their destruction of the democratic process.

In relation to Zimbabwean asylum seekers in South
Africa

·Take immediate steps to ensure that no
Zimbabwean asylum seekers, including those fleeing the 2008 post-election
repression and violence, are deported from South Africa.

·Officially recognize that despite ongoing reforms,
the current dysfunctional state of the asylum system and deportation practices
combine to create a high risk of refoulement
for Zimbabweans.

·Ensure that Zimbabweans are given adequate
documentation at all stages of the asylum process to protect them against
arrest, detention, and deportation.

·Use the opportunity provided by the current
reforms to the asylum system to cooperate with UNHCR and South African
nongovernmental organizations (NGOs) to ensure that Refugee Status
Determination Officers receive regular and in-depth training on international
refugee law, including ongoing on-the-job training.

·Ensure that directors of the five Refugee
Reception Offices and all Refugee Status Determination Officers interviewing
Zimbabweans who have been targeted by Operation
Murambatsvina are instructed to consider such people as having, as a matter
of principle, strong asylum claims and to ensure that they interview such
applicants in-depth in order to establish their potential claim.

·If the proposed "temporary immigration exemption
status for Zimbabweans" is not adopted, create a specific team of Refugee
Status Determination Officers in each of South Africa's five Refugee Reception
Offices with the specific task and expertise required to review asylum claims
by people directly targeted by Operation
Murambatsvina.

To UNHCR in South Africa

·Assist the Department of Home Affairs in
establishing a new "temporary immigration exemption status for Zimbabweans," in
particular through registration procedures.

·Recognize that people targeted by Operation
Murambatsvina have strong prima facie claims to refugee status under the 1951
Refugee Convention.

·Work in close cooperation with the Department of
Home Affairs and South African civil society to provide regular and in-depth training
to Refugee Status Determination Officers in international refugee law,
including to special teams focusing on asylum claims made by people targeted by
Operation Murambatsvina.

To international donors

·Encourage the Government of South Africa to introduce
a new "temporary immigration exemption status for Zimbabweans" (TIES).

·Provide financial and technical assistance to
the government of South
Africa to put in place systems to help
implement the new status.

·Provide financial assistance to UNHCR and South
African civil society to assist them to provide regular in-depth training to
Refugee Status Determination Officers in refugee law.

·Provide the South African government with
financial assistance to ensure that particularly vulnerable Zimbabweans, such as
unaccompanied children and the very sick, have access to medical care and food.

·Provide all necessary support to Southern Africa
Development Community (SADC) governments to assure continuity of care for
People Living with HIV/AIDS (PLWHA) and tuberculosis (TB) patients on
anti-retroviral treatment (ART) and Directly Observed Therapy, Short-Course
(DOTS) treatment who move between states, and to ensure synchronization of
standards (e.g. recognition of medical tests) and remove eligibility barriers
for donor-supported treatment.

IV. Zimbabweans in South Africa

Increased
Numbers of Zimbabweans in South Africa

Since the
sharp deterioration of the political and economic situation in Zimbabwe
began in 2000, Zimbabweans have been forced to leave their country in
increasing numbers. Those with enough money to pay for airfare, usually middle
class professionals, have left for industrialized countries, above all the United Kingdom.[1]
However, most have gone to Zimbabwe's
immediate neighbors: Botswana,[2]Mozambique, Zambia,[3] and
above all to South Africa.

Because the
vast majority enter these four countries through informal border crossings and
remain undocumented throughout their stay, there are no reliable statistics on
the number of people leaving Zimbabwe.

In South Africa there is broad agreement that the
rate of undocumented emigration from Zimbabwe
to South Africa
increased after 2005, the year in which Zimbabwean authorities destroyed
700,000 peoples' homes and businesses, and when a sharp deterioration in the
Zimbabwean economy left an increasing number in desperate economic need.
Deportation statistics also suggest that there has been an increase in the past
two years: in 2006 South
Africa deported over 80,000 Zimbabweans and
the rate in 2007 appears to have increased dramatically.[4] In
2007 government and civil society have documented and commented on apparent
increased entry into South
Africa through informal border crossing
points.[5]

By the
beginning of 2008 there were probably between one and 1.5 million Zimbabweans
in South Africa.[6]
Almost all entered and have remained in South Africa without visas or
documentation of any kind.

Zimbabweans
have been coming to work in South
Africa for decades with a significant
increase since 1990.[7]
Although there have always been a significant number of undocumented Zimbabwean
workers in South Africa, much of the migration in the past has been legal
(through work or trading permits), from the southern part of Zimbabwe, and
"circular," with Zimbabweans regularly moving back and forth across the border.[8]

In
contrast, the current situation is unprecedented. Hundreds of thousands of
Zimbabweans from all parts of their country[9] have
come to South Africa without
permits to enter and remain because the situation in Zimbabwe has left them little other
choice. Without fail, Zimbabweans interviewed by Human Rights Watch in October
and November 2007 said that they had no intention of returning to live in their
country until the crisis was over and they could once again find work and food
for their families.[10]

The South
African Government's Response to Date

Despite the
unprecedented numbers of Zimbabweans crossing its borders and apart from its
unsuccessful policy of deporting tens of thousands of Zimbabweans each year,[11]
the South African government has effectively turned a blind eye to their
presence.

Instead of
setting out a clear public policy with the government's assessment of the
reasons for the influx as well as a frank admission of the challenges it faces
in responding, the South African government has adopted a business-as-usual
approach. It treats Zimbabweans like any other foreign nationals by requiring
them either to obtain visitors permits or work permits, or to make an asylum
application. The police or immigration services deport those who breach these
requirements. No special arrangements have been put in place to respond to the
significant humanitarian needs of particularly vulnerable Zimbabweans in South Africa,
such as unaccompanied children and the sick (including PLWHA).[12]

In more
political terms, the government's response is also questionable, using the
media's language to generalize about Zimbabweans in a negative way. Most South
African and international media refer to recent Zimbabwean arrivals in South
Africa as if they were a single group of people all coming for the same reason.
The media usually chooses emotive phrases such as "a human tsunami," "illegal
immigrants," "economic migrants," or "border jumpers" to describe, without
distinction, the hundreds of thousands of Zimbabweans currently living in South Africa.

The
government, like the media, tends to group all Zimbabweans together and uses
legally imprecise and emotive language to paint a picture that suggests that
Zimbabweans have all voluntarily left their country and that their motives are
purely economic.

President
Thabo Mbkei has referred to Zimbabweans in South Africa as "this … inflow of
illegal people."[13]
South African police officers involved in arresting Zimbabweans before
deportation are reported to have made comments such as, "there is no war in
Zimbabwe," implying that Zimbabweans cannot possibly have valid asylum claims.[14]
Officials from South African National Defense Forces (SANDF) and municipal
councils working on the border have said that all Zimbabweans "are economic
migrants" or "not real refugees."[15]

The
business-as-usual approach helps the government avoid publicly addressing two
key awkward questions: why exactly are Zimbabweans coming to South Africa in increasing numbers, and what, in
light of their reasons for coming, are South Africa's legal obligations?

South Africa's foreign affairs response

Over the
past two years, however, the deteriorating situation in Zimbabwe has brought
regional concern to a sharper focus. After brutal violence by Zimbabwean police
on opposition members and civil society activists on March 11, 2007, leaders of
the Southern Africa Development Community (SADC) convened an extraordinary
summit. SADC mandated President Thabo Mbeki to mediate talks between the
opposition party, the Movement for Democratic Change (MDC), and Robert Mugabe's
ruling Zimbabwe African National Union-Patriotic Front (ZANU-PF), with
the objectives of securing agreement on constitutional reform ahead of March
2008 elections and ending the economic crisis.[16]

During its one year as mediator, the South African
government repeatedly championed a
"quiet diplomacy" approach. It avoided making statements that could have been
interpreted as critical of President Mugabe, leading to widespread criticism that
it was not sufficiently assertive. The government failed, for example, to hold
President Mugabe accountable to undertakings made during the talks.[17] In line with SADC's deafening silence on human rights abuses committed
in Zimbabwe
for the past eight years,[18] the South African government also repeatedly failed to condemn the
serious rights violations carried out by the Zimbabwean security forces.[19]

While "quiet
diplomacy" may not have been an inappropriate starting point, the mediation
initiative appears to have singularly failed to leverage change in President
Mugabe and ZANU-PF's repressive practices. The fact of the violent crackdown
that followed the parliamentary and presidential elections in March 2008
demonstrates the failure to send a clear message to President Mugabe that there
would be consequences for failing to reach agreement with the MDC on how best
to ensure free and fair elections.

As the ZANU-PF organized violence has intensified building
up to the June 27, 2008 presidential runoff elections, South Africa's response has
remained deeply inadequate. Some regional leaders, for example President Levy
Mwanawasa of Zambia, have
been forthright in condemning the violence and criticizing the political
situation in Zimbabwe.
In contrast, President Mbeki has refused to acknowledge the serious nature of
the situation, for example, failing during a visit to Harare on May 9 to
condemn or call for an end to the violence even after he received a preliminary
report on the violence from a group of South African former army generals he
had appointed to investigate the situation.[20]

As Human Rights Watch has recently argued,[21] these different
positions have prevented SADC and the AU from taking concerted and decisive
action to intervene in the crisis which has, in turn, emboldened the government
of Zimbabwe
to turn state institutions even more aggressively against Zimbabweans seeking
democratic change and an end to the destruction of their countries' economy.

The South African government must abandon its discredited
"quiet diplomacy" approach towards Zimbabwe, and must urgently play a
central role within the African Union (AU) and SADC to pressure the Zimbabwean
authorities to end the current violence and their destruction of the democratic
process.

Why Zimbabweans
are Coming to South Africa: an Overview of a "Mixed Flow" of
People

The
government's approach fails to recognize that Zimbabweans are leaving their
country for various reasons and that the vast majority are not voluntary
economic migrants.

In October
and November 2007 Human Rights Watch interviewed 99 Zimbabweans in or near Cape Town, Johannesburg,
and Pretoria.
Almost all interviewees came to South Africa
in 2005, 2006, or 2007, and many had been in South Africa for more than two
years.

Many
Zimbabweans, probably in the thousands, have fled over the past eight years to South Africa
to escape persecution in the form of arbitrary arrest and detention, torture,
and beatings.[22]

Such
persecution has once again reached alarming levels in the aftermath of the March
29, 2008 elections.[23]Officials from ZANU-PF,
often working through proxy forces of so-called war veterans and youth militia,
backed by members of the armed forces and police, have used hundreds of base
camps to beat and torture at least 2,000 suspected MDC activists and
supporters. At least 36 people have been killed, including abducted MDC
activists.

Abusive "re-education" meetings have been held to compel MDC
supporters to vote for Mugabe. In one of these meetings, on May 5 in Chiweshe,
ZANU-PF officials and "war veterans" beat six men to death and tortured another
70 men and women. ZANU-PF and its allies have engaged in a campaign of looting
and destruction, slaughtering animals, stealing food and property, and burning
down homesteads. More than 3,000 people are known to have fled the violence and
are now internally displaced in cities and towns throughout the country, with
inadequate access to food and water.

Although
there are no statistics available, the political crackdown carried out by the
government after the March 2008 elections has undoubtedly led to hundreds if
not thousands of Zimbabweans fleeing their country to seek protection in South Africa
and elsewhere.

Since 2000
such cases of persecution have been well-documented. However, because the
number of such people is relatively small compared to the total number of
Zimbabweans in South Africa,
Human Rights Watch interviews for this report focused on two other groups of
Zimbabweans who represent hundreds of thousands of people.

The first group
is made up of those who were targeted by the Zimbabwean government's campaign
of forced evictions in 2005. They told Human Rights Watch how they had lost
their homes and businesses and how they had unsuccessfully tried to find a
place to live in order to rebuild their lives in Zimbabwe. For months and years they
continued to suffer serious violations of their rights to housing, work, and
other rights in Zimbabwe.
They have strong claims for refugee status.

The second group
was made up of those who left Zimbabwe
because they had found it increasingly hard to find work or had a salary that
had no value because of inflation. Desperate to find work to help their
families survive, they have come to South Africa
because they have found no other way of coping with their economic destitution
in Zimbabwe.

Many people
interviewed (falling in one of the two groups) are HIV infected. Many told
Human Rights Watch how they had been unable to afford even basic health care
services or to access desperately needed ART in Zimbabwe.

When combined
with testimony of political violence and intimidation,[24] these different stories combine to
create a picture of a "mixed flow"of people who are leaving their
country for a mixture of reasons.[25] The
final picture is a far cry from the simplistic "illegal economic migrant" image
that is presented by the media and the South African government.

Legal
Obligations Towards Lawfully Present Zimbabweans

South Africa has specific legal obligations
toward Zimbabweans who are lawfully present in South Africa. These fall into two
groups.

The first
group are people who have been granted one of the temporary residence permits
provided for under South African immigration law.

The four
types of permit most likely to be used by Zimbabweans coming legally to South Africa
in recent years are visitor's permits, cross-border trading permits, work
permits, and special permits issued under the corporate permit system (used to
employ large groups of people mostly on farms).[26]
When a Zimbabwean arrives at the border with one of these permits and a
passport, the border authorities normally allow the person to enter.

There are
no official government statistics on how many of each permit are granted to
foreign nationals each year. Official statistics, which only cover certain
types of permits, show that the total number of permits granted per year is
around 60,000, and that the vast majority of these are visitors permits which
do not grant the permit holder the right to work.[27] It
is, therefore, impossible to say how many Zimbabweans enter South Africa each year on the basis
of a temporary residence permit.

The South
African authorities' obligation toward Zimbabweans with valid permits is not to
return them to Zimbabwe
unless they become "prohibited persons" or "undesirable persons."[28]

The second
group of Zimbabweans whose rights to enter and remain in South Africa are clearly set out in South Africa
and international law are asylum seekers and recognized refugees. Between 2005
and 2007 some 44,423 Zimbabweans claimed asylum in South Africa, roughly one-third of
all asylum claims in each of those three years.[29]

Once an
asylum claim has been lodged the asylum seeker has a right to remain until the
claim has been processed.[30]
As later sections of the report explain, the South African asylum system
continues to fall short of what is required by law. Because its procedures are
dysfunctional and have not, to date, considered Zimbabweans who were targeted
by the 2005 forced evictions as being people with valid asylum claims, there is
a high risk of Zimbabwean asylum seekers being unlawfully returned to Zimbabwe.
Instead South Africa
considers these people to be in the same position as any other Zimbabwean
coming to South Africa
to escape the current economic conditions there.

Although
the South African constitution accords basic human rights to all, including
Zimbabweans living in South Africa, regardless of their legal status,[31]
those Zimbabweans who do not have a temporary residence permit or who have not
made an asylum claim or have not been recognized as refugees do not have the
right under national or international law to enter or remain in South Africa.

Zimbabweans'
Assistance Rights and Needs in South Africa

The South
African government not only faces the presence of large numbers of Zimbabweans
on its territory, but also a Zimbabwean population with serious assistance
needs.

Rights to
assistance

As a matter
of broadly stated law, "everyone" residing in South
Africa, regardless of status, has the rights set out in South Africa's
Bill of Rights.[32]
But when it comes to the detail, the situation is less clear. In relation to
the bill's civil and political rights, such as the right to be free from all
forms of violence and not to be arbitrarily detained, these unequivocally apply
to everyone.[33]
In relation to the bill's economic and social rights, the law spells out that
certain of these rights belong to everyone, regardless of their legal status in
South Africa:
access to emergency and basic health care[34] and
access to a basic education.[35]
In the cases of other such rights in the Bill of Rights, including access to
adequate housing, food, water, and social security, South African courts have
not yet unequivocally recognized that these rights belong to everyone. In 2004
the South African Constitutional
Court decided that such rights are enjoyed by
"permanent residents" (as well as South African citizens).[36]

Foreigners,
including Zimbabweans, with temporary residence permits (visitors or people
with work-related visas) are not entitled to receive social welfare assistance,
such as to housing and food.[37]

The 1998
Refugees Act provides that recognized refugees, including the small number of
Zimbabweans recognized as refugees,[38]
have all the rights set out in the Bill of Rights.[39] However,
in practice, recognized refugees have not been able to secure rights to social
assistance. Two leading South African groups working on public interest cases,
the Legal Resources Centre and Lawyers for Human Rights, have been at the
forefront of using litigation and negotiation strategies to ensure that
particularly vulnerable recognized refugees receive social assistance grants in
the same way as people with permanent residency status in South Africa.[40]

It is
arguable that like refugees, asylum seekers have all the rights in South Africa's
Bill of Rights, but this has yet to be tested in court. To date the government
has not explicitly recognized asylum seekers' rights to social security
assistance.[41]
The 1998 Refugees Act is silent on asylum seekers' right to housing assistance[42] and non-health related social
services such as food and social security. Thanks to civil society groups'
intense lobbying and threats of litigation, asylum seekers, including the
44,423 Zimbabweans who made asylum claims between 2005 and 2007, are legally
entitled to work and study,[43]
and, if HIV infected, do not have to pay for ART.[44]

Struggling to secure rights to
assistance

Despite
these pockets of improvement, both refugees and asylum seekers continue to face
serious obstacles in gaining access to many types of assistance to which they
are legally entitled.[45]

Refugees
continue to struggle to gain access to emergency and non-emergency health care,
housing, and other forms of social security assistance. Despite these
theoretical rights, there has been slow progress in giving them practical
effect: there is no national or local government policy explicitly reiterating
these rights or establishing procedures to help refugees claim them with
service providers.[46]

Asylum
seekers also face difficulties in gaining access to fee-based health care, and
despite some improvements, continue to face significant difficulties in gaining
access to ART.[47]
With respect to access to housing, little has changed for asylum seekers since
Human Rights Watch reported on their housing situation in November 2005.[48]
Finally, ensuring asylum seekers are able to claim their right to work is an
essential means of reducing their dependence on state assistance. However, Zimbabweans
interviewed by Human Rights Watch repeatedly spoke of employers' unwillingness
to recognize asylum seekers' permits as valid documents, a practice that has
been documented for years and which could easily be changed through a concerted
government information campaign.[49]

The
needs of undocumented Zimbabweans in South Africa

The vast
majority of Zimbabweans in South
Africa, in the hundreds of thousands, are
undocumented; they have neither temporary-residence nor asylum-seeker permits.
They are, therefore, not entitled to access social services, with the exception
of primary education and free emergency health care.[50]
They are also not entitled to work. The majority of Zimbabweans are, therefore,
extremely vulnerable once they come to South Africa, a fact underlined by the
recent violence against mainly undocumented foreign nationals that swept South
Africa in May 2008.

Regardless
of their legal status in South Africa, Zimbabweans generally live where they
hope to find income and shelter: large numbers stay in the border areas where
they work mainly on farms;[51]
some work in industrial and mining areas; some go to townships on the outskirts
of medium-sized towns;[52]
others, almost certainly the vast majority, go to the major urban centers of
Johannesburg, Pretoria, Cape Town, Durban, and Port Elizabeth, where they are
most likely to find informal work as domestic workers, street vendors, car
watchers, and laborers on construction sites. These jobs are commonly referred
to in South Africa
as "piece work," and are both hard to find and difficult to keep.[53]

Although
there are no recent exhaustive, country-wide studies on the extent and nature
of Zimbabweans' humanitarian needs in South Africa,[54] it
is widely reported that they face difficulties in finding work, and that those
who do find work are often underpaid and exploited.[55]

Zimbabweans
in desperate need of accommodation, food, and health care often overwhelm South
African charities and churches. Local service providers consistently cite
accommodation as the Zimbabweans priority humanitarian need.[56]
In order to cope with their often desperate housing situation, most Zimbabweans
seek support within their own communities, often living in very high numbers,
in small shacks or rooms in rural areas, and in tightly packed flats in
high-density parts of South Africa's urban centers where dozens of Zimbabweans
sleep in four-hour shifts.[57]
A more limited yet significant number find shelter with churches.[58]

South
African charities have also noticed an increase in the number of highly
vulnerable Zimbabweans in very poor health and often hungry coming to their
doors.[59]
A number of interviewees working with these groups told Human Rights Watch that
they feared that the continuing deterioration of the already dire circumstances
in Zimbabwe will lead to
ever greater increases in children, women, and elderly people coming to South Africa
to survive.[60]

Until May
2008 the most striking evidence of Zimbabweans' needs and vulnerability in South Africa's urban centers was the CentralMethodistChurch in Johannesburg, which for a number of years has
provided night-time shelter to 1,300 homeless Zimbabweans who sleep in highly
cramped conditions side by side in the corridors, rooms, and on the stairs
surrounding the church's crypt.[61]
On the night of January 30, 2008, the South African police forcibly raided the
church. They detained 800 people for a number of hours, a further 300 people
for five days, and 68 for two weeks before the Johannesburg High Court ordered
all of them to be released, describing the police raid as"a brutal, indifferent, and cruel treatment of human
beings."[62] The raid is a high-profile example
of the insecurity faced by Zimbabweans in South Africa.

In May 2008
this vulnerability was brought into sharp focus by the violence against them by
South African citizens in many parts of the country. The violence killed
at least 62 people, injured 670, and displaced over 100,000,[63]
and follows many similar isolated incidents that have taken place throughout
2007 and early 2008.[64]
To assist the 29,000 people who have been displaced by the recent violence and
who have remained, homeless, in South Africa,
the South African authorities have set up 99 "temporary shelters" in Gauteng,
Western Cape, and KwaZuluNatalProvinces, in which UN
agencies and nongovernmental organizations are to provide emergency assistance
to the displaced. As of June 5, many of the sites did not comply with
international standards governing the rights of displaced persons.[65]

V. Fleeing
persecution: Operation Murambatsvina("the evictions")

People targeted by the 2005 campaign of forced evictions in Zimbabwe
have a strong claim to refugee status under international refugee law. Section
VI of this report will set out the legal arguments in detail. Before that, this
section sets out a summary of the evictions and testimony from Zimbabweans in
South African and Zimbabwe
who were targeted by the evictions, on which the legal arguments will draw.

The Evictions

On May 25, 2005, the Zimbabwean authorities began "Operation Murambatsvina," which translates as "Clear the
Filth." The two-month campaign, which this report will refer to as "the
evictions," directly or indirectly affected almost 2.7 million persons.[66]
It was officially aimed at "cleaning" Zimbabwe's urban areas of informal
trading and housing structures. The evictions lasted until July 25, 2005, and
destroyed informal traders' trading structures, shanty dwellings of the poorest
residents, and unauthorized extensions of more solid homes in the better off
parts of the urban areas. Most of Zimbabwe's
urban centers were affected, including Harare, Bulawayo, Chinhoyi, Gweru, Kadoma, Kwe Kew, Marondera and
Mutare, and Victoria Falls. After the
evictions, the police strictly enforced a ban on informal trading.

While the
evictions were still ongoing, the UN Secretary General appointed Anna
Tibaijuka, the director of the UN Center for Human Settlements (Habitat), as
the UN's "special envoy on human settlement issues in Zimbabwe." Based on her visit to
Zimbabwe in June 2005, the UN special envoy published a report in August 2005 (UN
report)[67]
which concluded that by July 7, 2005, 92,460 housing structures had been
destroyed, affecting 133,534 households at more than 52 sites;approximately 700,000 people in cities
across the country lost either their homes, their source of livelihood, or
both;[68] the evictions forced approximately
500,000 children out of school or seriously disrupted their education.

The evictions took place in the context of an increasingly
serious economic crisis. Despite facing recurring drought and an AIDS pandemic,
the problems faced by Zimbabwe even before the evictions were "primarily
man-made," and "a mixture of failed governance, food insecurity and
manipulation of food for political ends, and economic meltdown, including
triple digit inflation, over 70 percent unemployment, and large shortages of
consumer items, fuel and foreign currency."[69]

By the time the evictions took place, the formal economy had
deteriorated to such an extent that only 1.3 million Zimbabweans were employed,
leaving 3 to 4 million Zimbabweans with no other option but to work in the
informal economy in the country's urban centers.[70] The
UN report concluded that by 2004, 70 percent of Zimbabwe's urban population was
unemployed and that 75 percent of this group was living below the poverty line.[71]
The informal economy was their only lifeline. Furthermore, the Zimbabwean
authorities "turned a blind eye" to this "explosion of the informal sector,"
thereby actively encouraging its growth.[72]

The Zimbabwean government's decision to destroy the informal
economy through the evictions was, therefore, taken in the full knowledge that
there would be no employment alternative for those targeted by the evictions
that would help them to rebuild their lives and feed their families. This makes
the government's subsequent ban on informal trading and its failure to assist
those it had evicted all the more serious.[73]

The evictions also took place against a backdrop of a
housing crisis. The UN report describes how since 1980 the urban population had
grown at an annual rate of up to 8 percent. New arrivals to the cities rented
cheap rooms in "backyard extensions" built by low-income urban residents
without official permission. These owners often became dependent on rent
collection as their main source of income. The UN report notes that by the time
the evictions took place, "this type of 'backyard tenancy' had… become the
dominant source of housing for low income families."[74]

In summary, in carrying out the evictions, the Zimbabwean
government targeted people who it knew full well "were already among the most
economically disadvantaged groups in society," and who were inevitably "pushed
deeper into poverty… becom[ing] even more vulnerable."[75]

Numerous reports have documented the immediate aftermath of
the evictions.[77]
The International Crisis Group provided an account of the extent of the
displacement:

[N]early 20 per cent (114,000) of those displaced by the
operation slept in the open at the mercy of winter temperatures as low as 8°C
at night, risking sickness or even death through exposure. Another 20 percent
returned to rural areas while nearly 30 percent (170,000) sheltered with family
and friends in urban areas. The remaining 30 percent took temporary refuge in
churches across the country or are moving around cities, sleeping mainly in
parks, on the roadside, or in other open places. Police have been rounding up
this latter category, either detaining them or sending them to unspecified
destinations.[78]

The UN report said that the evictions created a state of
emergency, summarizing its findings on the impact on more than half a million
rendered homeless as follows:

It has created a state of emergency as tens of thousands of
families and vulnerable women and children are left in the open without
protection from the elements, without access to adequate water and sanitation
or health care, and without food security. Such conditions are clearly
life-threatening. In human settlements terms, the Operation has rendered over
half a million people, previously housed in so-called substandard dwellings,
either homeless or living with friends and relatives in overcrowded and
health-threatening conditions. In economic terms, the Operation has destroyed
and seriously disrupted the livelihoods… of people who were coping, however
poorly, with the consequences of a prolonged economic crisis.[79]

In 2005 Human
Rights Watch reported that the evictions took a particularly heavy toll on
vulnerable groups: widows, orphans, the elderly, households headed by women or
children, and people living with HIV/AIDS. Thousands of people were left
destitute, sleeping in the open without shelter or basic services.[80]

Human
Rights Watch interviews with 21 Zimbabweans in Harare
and Bulawayoin February
2008 corroborated these reports. Two-and-a-half years after the evictions, many
Zimbabweans have yet to recover and continue to live in complete destitution,
having lost everything: shelter, work, food, health, and education for their
children.

A
37-year-old woman from Harare
with four children told a story that is typical of many others interviewed by
Human Rights Watch:

Before the
tsunami[81]
I was living in a two-roomed cottage in Mbare National with my four children. I
sold tomatoes and drinks in the streets and I had money for food and rent and
for school fees. The tsunami destroyed our rooms. We had nowhere to go. My
children stopped going to school. We slept for six months in the open at the Mbare-Musika
bus station. There were many other people there too. I gave birth to my son in
the street outside the nearby hospital because I could not pay for the
registration fee. I tried to sell things in the street but the police stopped
us and chased us and stole our things. I had to stop my children from suffering
so I started to work as a prostitute. I made very little money. Sometimes they
paid me with drinks or with a little food.

I bought
some sticks and plastic sheets and built a small shelter on wasteland in Mbare.
We still live there now with many other families. The police come at least two
times a month. They burn our plastic sheets and ask us why we are staying
there. Every time I have to make more money to buy new sheets. Sometimes I
don't have enough and we sleep under the sky. If it rains, we can't sleep but
sometimes I find a small piece of plastic which I put on my children's
blankets. When the police come they beat people. They have beaten me, all over
my body. The police stopped burning and beating people last month [January
2008]. I think this is because of the elections. They want us to vote for them.[82]

In 2006
Human Rights Watch reported on how the evictions and the crackdown on the
informal economy had made individuals both more vulnerable to infection and
less able to access fee-based health care.[83]
Interviews with PLWHA in February 2008 suggest that for many the dire circumstances
have not changed.

A
42-year-old man living with HIV explained how he had tried to survive after the
evictions by continuing to sell fruit and vegetables, but that he had been
arrested and fined at least 12 times in 2007. Each time the police confiscated
his goods. By the time he was due for a Cluster of Differentiation 4 (CD4) test
in October 2007 he was told that the test fee was Z$10 million (US$10)[84]
and that it would take at least six months after registration to be tested. As
he was not able to afford the fee he did not register for the test, leading to
uncertainty about the state of his health and the possible need to access ART.[85]

Similarly a
41-year-old woman living with HIV, who has five children and who lost her home
and ability to trade because of the evictions and the ban on informal trading,
explained how her HIV infected husband died of tuberculosis in early 2006
because he had been unable to pay for treatment. She said that she was now
unable to pay for basic medical consultations and medication (CTX) or for a CD4
test for her three-year-old HIV infected boy. She said it was impossible for
her to afford the cost of a CD4 test for her son.[86]

A 75-year-old woman told Human Rights Watch:

I was renting out two cottages. I used the money for food,
water, school fees for my grandchildren and to keep my house up. During the
tsunami, they made us tear down the cottages and then they charged us fees to
remove the rubble. Now I rent out three rooms in my house and I live in the one
other room without a roof with my daughters and grandchildren. I had seven
children. Five have died from AIDS. I looked after each one until they died. I
have two daughters left. One is sick and her husband just died of AIDS. I don't
know if she'll be OK. Some of my grandchildren have died of AIDS too. I was
taking care of one and his mother came and took him away and said "I'm not
going to let him stay with you and die like all of your children."[87]

She went on
to describe how the imposition of health fees has affected her ability to care
for her other 35 year-old daughter, who has been diagnosed with mental illness:

She has been hospitalized a number of times. Sometimes they
prescribe medicine but then she refuses to take it and becomes manic. She'll
get into a terrible rage. Finally I'd be able to get her back on her medicine
and things would get a little better. She was able to work a little. But then
in December 2007 they said that I would have to buy the medicine. I don't have
any money. How can I buy her medicine? I can't. Now things are so much worse.
She is filling the house with trash, with dirt, with anything she finds on the
street. The house is overflowing with trash.[88]

Explanations for the Evictions

The official explanation

A leading report analyzing the evictions identified nine
separate official explanations given by the Zimbabwean authorities:

[t]o stem disorderly or chaotic urbanisation and… problems
[preventing] enforcement of national and local authority by-laws [concerning]
service delivery [of] water, electricity, sewage and refuse removal; to
minimise the threat of major disease outbreaks…; to stop economic crimes
especially illegal black market transactions in foreign currency; to eliminate
the parallel market and fight economic sabotage; to reorganise micro-, small
and medium enterprises; to reduce high crime levels by targeting organised
crime syndicates; to arrest social ills, among them prostitution, which
promotes the spread of HIV/AIDS and other communicable diseases; to stop the
hoarding of consumer commodities, and other commodities in short supply; and to
reverse the environmental damage and threat to water sources caused by
inappropriate and unlawful urban settlements.[89]

A senior Zimbabwean government representative in South
Africa blamed the urban poor and informal traders for deteriorating standards
of health, housing, and other services in Zimbabwe, as well as for the
spiraling crime rate, hoarding, and disappearance of basic commodities from
shops, and for a swelling black market including for foreign currency. The
Zimbabwean representative argued that all of these problems cost the government
considerable revenue and undermined the country's economic turnaround.[90]

The
alternative explanation

The political context of the evictions and their timing cast
doubt on the official explanation. Indeed, both credibly point to the ruling Zimbabwe African National Union-Patriotic Front(ZANU-PF)[91]
conducting the evictions to weaken actual and potential support among the
poorest people living in Zimbabwe's cities for the opposition party, the
Movement for Democratic Change (MDC). ZANU-PF perceived the urban poor as
supporting the MDC and almost certainly would have seen the evictions as a way
to assert ZANU-PF's political control over the areas where they were
concentrated.[92]
There were also a number of possible secondary benefits for ZANU-PF.

During the March 31, 2005 elections, ZANU-PF won the
two-thirds parliamentary majority needed to change the constitution at will,
thanks to extensive support in and control of local councils in the rural
areas. However, the MDC won 26 of 30 parliamentary seats in major towns and
cities throughout the country and controlled local councils in the country's six
largest cities (except for Harare where the government had disbanded the local
council in 2004 to replace it with a ZANU-PF commission).

In April 2005 Zimbabwe's urban areas were, in
political terms, the last part of the country that had not fallen under
ZANU-PF's full political control. People living in the poorest areas of Zimbabwe's
cities undoubtedly contributed in large part to the MDC's success. Given the
increasing economic hardship which they faced as a result of the rapidly
deteriorating economy, ZANU-PF is likely to have identified them either as
actual opposition supporters or as the people most likely to cause civil unrest
in the face of ever-increasing economic discontent.

In the build-up to the evictions there were two incidents in
particular which indicated that a broader political crackdown was going to take
place. During the first half of April 2005, police arrested 100 MDC supporters
in a number of different urban areas. On May 11, 2005, police beat up and
forcibly dispersed residents of Harare's
low-income suburb of Mabvuku who were protesting a lack of water during the
previous three days.[93]

According to an interview conducted by the International
Crisis Group with a senior Zimbabwean state security official on July 5, 2005,
shortly before the evictions began on May 25, 2005, "[T]he Minister of State
Security Didymus Mutasa warned the government of the possibility of spontaneous
uprisings in urban areas due to food shortages and other economic problems."[94]

ZANU-PF's calculation of what would happen after the
evictions is almost certain to have focused on the fact that a large number of
the urban poor had originally come from the rural areas as a result of the
failed fast-track land reform process that began in 2000. Before their move to
the cities, they had formed part of the vast majority of rural Zimbabweans who
voted for ZANU-PF as a result of ZANU-PF's control of traditional chiefs, youth
militias, and other patronage structures in those areas. In contrast, during
their time in the urban areas, many had switched allegiance to the opposition
MDC with its strong urban support-base.

ZANU-PF is likely to have calculated that returning these
people to their roots would once again bring them under the control of the
ruling party. Additionally, with their businesses destroyed, with no other
place to go, and with the slump in agricultural production in the rural areas,
ZANU-PF will almost certainly have calculated that once returned to the rural
areas they would be easier to control through the use of government-controlled
food aid.[95]

On June 22, 2005, just over a month into the evictions,
Justice Minister Patrick Chinamasa told the Zimbabwean Parliament that the
government would relocate people displaced by the evictions "back to where they
come from."[96]
He said that the authorities had been urging urban internally displaced persons
(IDPs) in the holding camps-closed
camps where thousands of the evictees were taken-to go back to their country roots.[97] In December 2005
Human Rights Watch reported on how the Zimbabwean authorities used various
methods to forcibly relocate people to the rural areas, including police
violence and other forms of harassment and manipulation of food aid, to
encourage people to leave the urban areas.[98]

A secondary reason for ZANU-PF to carry out the evictions
was to revive the agricultural sector that the government's fast-track land
reform had helped to destroy. On July 3, 2005, a senior official in the
Ministry of Lands said that "our preoccupation now is to get the commercial
agriculture farming sector working."[99] A
key element of such a policy would be to ensure a reliable supply of
agricultural workers, leading Zimbabwe's
Deputy Minister of Local Government, Public Works and Urban Development Morris
Sakabuya to describe the evictions as an attempt to "resuscitate rural areas."[100]

A final ironic twist is that in carrying out the evictions,
ZANU-PF invoked the very same laws the white minority government of Ian Smith
had used in the 1970s and 1980s to demolish homes and prevent a possible
uprising on behalf of majority rule in Zimbabwe, led by Robert Mugabe.

The Government's Failure to Assist People Targeted by the
Evictions

In August
2005 the Zimbabwean government responded to the UN report by arguing that the
government had put in place a plan (called "Operation Gairkai/Hlalani
Kuhle" or "Better Life") to
provide alternative accommodation to those affected by the evictions. The UN report
had concluded that a total of 92,460 households were destroyed. In May 2006 the
Zimbabwean government gaveevidence
to the African Commission on Human and Peoples' Rights, that3,325 housing units had been completed
and made available to those affected.[101]
This, however, still left 89,135 households with no alternative housing.[102]

In 2007
UN-Habitat reported:

[A]t
least 20 percent of the houses were earmarked for civil servants, police and
soldiers, while some victims of Operation Murambatsvina were provided small
plots of land without assistance with which to build homes. Furthermore, many
of the homes designated as "built" are not finished, do not have water and
sanitation facilities, and have not been allocated… Even if a victim of
Operation Murambatsvina was able to access a home through the highly corrupt
allocation process, the majority of victims would not be able to afford the
homes.[103]

In December
2005 and August 2006 Human Rights Watch reported on the Zimbabwean government's
complete failure to respond to the needs of the 700,000 evictees it had
displaced.[104]
The government failed to recognize the scale of the crisis, made no attempt to
locate or register the evictees, provided them with no food, shelter, or other
form of assistance, and provided no special assistance to particularly
vulnerable groups such as people living with HIV or AIDS (PLWHA) and
female-headed households.[105]
Furthermore, the government obstructed the provision of international
humanitarian assistance to the displaced evictees and even arrested those who
had received such assistance from local and international agencies.[106]
The 2005 report also documented how, in the absence of any other government
assistance, the government's ban on informal trading made it impossible for
those targeted by the evictions to help themselves.[107]

Legality

The UN report
rejected the Zimbabwean government's explanations for the evictions and
concluded that Operation Murambatsvina
had violated a wide range of the evictees' rights under the Zimbabwean
Constitution and under international human rights and humanitarian law.[108]

A legal opinion prepared by a leading UK barrister in cooperation with a
Zimbabwean and an international NGO concludes that the Zimbabwean authorities
may have committed a crime against humanity prosecutable under the Rome Statute
of the International Criminal Court because of the way it carried out the
evictions.[109]

VI. Fleeing
Economic Deprivation

Zimbabwe
was once one of the wealthiest countries in sub-Saharan Africa.[110]
Following independence, the government implemented a range of progressive
social and economic policies, resulting in marked improvements in human
development indicators. Life expectancy rose sharply from 45 years in 1960 to
59 years in 1987.[111]

Political Repression, Including those Indirectly Affected by
Mass Forced Evictions

Since the late 1990s, the Zimbabwean government has become
increasingly more repressive under the long rule of President Robert Mugabe.[112]
During elections, including those in March and June 2008, large numbers of
political activists have been assaulted and displaced.[113]
The government's political repression has taken many other forms including
policies resulting in the dislocation of hundreds of thousands of citizens, the
seizure of commercial farms, and assaults on the informal trading sector. These
policies have resulted in severe social and economic disruption for massive
numbers of people.[114]

As noted in the previous section, the Zimbabwean
government's campaign of forced evictions in 2005 destroyed tens of thousands
of houses and thousands of informal business structures, leaving an estimated 700,000
people (or 6% of the Zimbabwean population) without homes, livelihood, or both.[115]
The UN report on the evictions found that a further 1,700,000 people were
indirectly affected in a number of ways:

[their] livelihoods are indirectly affected by, for example,
loss of rental income and the disruption of highly integrated and complex
networks involved in the supply chain of the informal economy [including] for
example, transport and distribution services, suppliers of foodstuffs from
rural areas and… suppliers of inputs to rural areas, formal and informal
micro-credit institutions, and a wide range of part-time and casual labor.[116]

A government ban on informal trading made the suffering even
worse.[117]

A
Zimbabwean NGO community coordinator in Harare
told Human Rights Watch about secondary displacement caused by the evictions.
She said that she, like thousands of people like her, who lived in cottages
that the authorities destroyed, also owned flats that they rented out. After
their cottages were destroyed they were forced to return to their original
flats and had to ask the people who had been renting to leave. Two-and-a-half
years later thousands of these people are unable to find income because of the
government's crackdown on informal trading, and are, therefore, homeless,
sleeping in the open on wastelands, and often too weak or sick to even try to
find alternative ways of making money.[118]

Testimony collected from Zimbabweans by Human Rights Watch
in South Africa
in October and November 2007 includes many stories from people who spoke of how
the evictions affected the lives of family members in the rural areas who had
been relying on the income from relatives informally trading in the urban areas,
and who were made destitute after the evictions. Echoing many almost identical stories, a
25-year-old man from Harare
told Human Rights Watch:

Before the
tsunami I was working as a salesman. My income was supporting 17 relatives in
the rural areas. I sent them food and money for fertilizer and seeds. The
building I used to trade in was destroyed and it was impossible to get a
trading license and so I had to stop trading. All my relatives suffered. Before
the tsunami they ate three times a day. Afterwards they had no money for seeds
and fertilizer and soon they ate only sadza[119]
and sometimes porridge in the morning. They were all hungry and so I came to South Africa.[120]

Under
refugee law (below, Chapter VII), Zimbabweans directly affected by the
evictions can claim to have suffered persecution at the hands of the Zimbabwean
authorities.

Zimbabweans
indirectly affected by the evictions-hundreds of thousands living in the rural
areas-cannot make such a claim. However, the suffering they faced as a result
of the loss of income received from relatives in the cities was and remains
real, causing breadwinners to come to South Africa to help their relatives
survive the effect of the evictions.

Deterioration of the Economy Fuelled by Ban on Informal Trading

Zimbabwe
has one of the world's "fastest shrinking economies" and, by far, the world's
highest rate of inflation. The real gross domestic product has shrunk for nine
consecutive years,[121]
and the engine of Zimbabwe's
economy, agriculture, has contracted sharply.[122]
Between 1999 and 2004, maize production declined by over 60 percent[123]
and in 2007 alone it fell by a further 40 percent.[124]

Inflation in Zimbabwe
in 2008 has been estimated at over 100,000 percent.[125]
The proportion of the population living below the poverty line increased from
25 percent in 1990 to an estimated 70 percent in 2003 to 83 percent in 2007.[126]
Unemployment was estimated at 80 percent in 2007.[127]

With the collapse of much of Zimbabwe's formal economy, the
informal economy expanded and by 2005 employed three to four times the number
of people employed in the formal sector.[128]
However, as part of its 2005 campaign of forced evictions officially aimed at
sanitizing the cities of informal economic activity, the government targeted
the informal sector, banning all informal trading. This has resulted in a
severe crisis for individuals trying to make their living engaged in small
enterprises and vending.

During the
evictions alone, 32,538small, micro- and medium-size enterprises were
demolished, resulting in 97,614
persons losing their primary source of livelihood.[129]

Despite the
government's assertion that the demolitions affected only those workplaces
operating illegally, vendors, market places, and small business areas across
the country were targeted indiscriminately. During the operation, licensed
traders were arrested and had their goods confiscated or destroyed, and legal
vending sites were demolished.[130]

After the
evictions vendors were told they had to go through a "vetting" process to get
new licenses. In order to be licensed (or re-licensed) vendors had to submit
applications, be fingerprinted, and pay fees of US$10 in May 2006.[131]
Reports by both Human Rights Watch[132]
and Amnesty International[133]
document that the authorities granted or denied vending licenses based on
political affiliation. Officials barred people who were not supporters of the
ruling party, ZANU-PF, and gave preference to people with ZANU-PF affiliation.

In February 2008
Human Rights Watch interviewed people in Zimbabwe who continued to speak
about the political bias in obtaining permission to work and trade. A 42-year-old woman explained how
the destruction of her goods and the ban on informal trading had prevented her
from making money to support her 10 children and six grandchildren who all
lived with her in one room, but that ZANU-PF supporters were given the
opportunities denied to her:

In 2005 I started making brooms. I sold them at a market
stall. But then the government came and burned them all. I tried to get another
stand from the city council. They said there were none available. I tried to
start a co-op with some other people so we could all work together. I went back
to the city council and they told us to pay Z$200 million[134]
but I can't. Other people get stands, if they are ZANU-PF. I just sit by the
road. The police come two or three times a day. If they catch me I have to pay
a fine and they take away all of my brooms. There are 17 of us living in one room-myself, my children, and
grandchildren. Three of my grandchildren are orphans, and are HIV positive. I
cannot afford their school fees and I struggle to pay for their medicine.[135]

Zimbabweans
who fled to South Africa
gave similar accounts. A 43-year-old woman from Harare told Human Rights Watch how the lack
of a ZANU-PF card made it impossible for her to obtain a trading license and
left her without work or income:

They
destroyed my cottage in Mabvuko. I tried to feed myself and my daughter and
mother by selling cooking oil and soap in the Mabvuko market by the bus
station. The police made it impossible, arresting and fining and beating us.
Each time they caught us they stole our goods. I tried to sell these things in
a friend's backyard but the police always raided us. They beat me twice, in
October 2005 and in January 2006. The first time they beat me with a chambuka (rubber whip) all over my body.
The second time they beat me with an iron bar on my back and legs. It was
impossible to get a trading license. The council gave out very few licenses. I
was told that they were very expensive and that it was impossible to get one
without a ZANU-PF card and proof of attending their meetings. After the second
beating I knew I could not continue and had to leave, so I came to South Africa.[136]

Food

The collapse in food production has caused a serious food
deficit, affecting 4.1 million Zimbabweans (more than one-third of the
population).[137]
Until June 5, 2008, ongoing food assistance programs by international agencies
such as the World Food Program were expected to meet all of the assessed needs
in rural areas, though only one-third of the one million urban Zimbabweans
estimated to be food insecure were receiving formal food assistance.[138]
On June 4, 2008, the Zimbabwean authorities announced a complete halt to the
work of all aid agencies in Zimbabwe,
including those distributing emergency food rations, alleging that agencies had
been using their programs to campaign for the opposition party.[139] This followed
President Mugabe's announcement on May 29, 2008, that Zimbabwe had had to import 600,000 tons of maize
to ease food shortages,[140]
and warnings that in the coming 12 months Zimbabwe's cereal production will
cover only 28 per cent of the populations' needs.[141]

Human Rights Watch heard again and again how hunger
compelled Zimbabweans to flee to South Africa. A 42-year-old widow
with three children told a story similar to many others:

When they
destroyed my cottage and stopped us from working I had no money for food or
rent or school fees. We slept under the sky in a riverbed for two weeks and my
children all became sick and hungry. We went to live with my mother in the
rural areas for three months. There was no work and almost no food. We only ate
porridge and a little sadza. Everyone
in the village was already hungry and had no food for us. I left my children
and tried for three weeks to sell vegetables… but the police stopped me. I was
sleeping on the side of the street…. We were always hungry. We lived from day
to day. I came to South
Africa in July 2006 to find food for my
children. I send back groceries and a little money every three months and now
they can eat again.[142]

In March 2008 Human Rights Watch reported on the
politicization of agricultural equipment and political interference with food
distribution carried out by Zimbabwe's
Grain and Marketing Board. The report documents that the nongovernmental
election monitoringorganization
Zimbabwe Electoral Support Network (ZESN), and organizations such as the
Zimbabwe Peace Project (ZPP), have alleged political interference in the
distribution of free agricultural equipment (under the government's farm
mechanization program) and state subsidized maize and seed from the
government's Grain and Marketing Board (GMB).[143]
Such manipulation is not new to Zimbabwe.
Human Rights Watch reports from 2003 and 2004 have documented how food
assistance has been denied to suspected supporters of Zimbabwe's main
opposition party and to residents of former commercial farms resettled under
the country's "fast-track" land reform program.[144]

Health and HIV/AIDS

Zimbabwe's
economic collapse, its repressive political environment, and the mass forced
evictions have also had an impact on the health sector generally and more
specifically on people living with HIV and NGOs providing services to them.

As of December 2007 an estimated 1.7 millionout of 13 million Zimbabweans were
estimated to be living with HIV, and 20.1 percent of all 15 to 44 year olds
were infected with the virus.[145]
The epidemic has sharply increased the burden on the health care system. Over
70 percent of admissions to medical wards in Zimbabwe's major hospitals are
patients with AIDS-related diseases.[146]

About 1.7 million
people are living with HIV in Zimbabwe,
and only 8 percent of adults and 4 percent of pregnant women are receiving
antiretroviral treatment (ART). Nearly 200,000 people died of AIDS in 2007.[147] Media reports have indicated that
some Zimbabweans are turning to unproven herbal remedies and to neighboring
countries because of their inability to access ART in the country.[148]
The Zimbabwean authorities' decision of June 4, 2008 (see above), to halt the
work of all aid agencies, including those providing health services, until further
notice may have a devastating effect on those lucky enough to have accessed ART
to date.

A
33-year-old HIV infected woman from Bulawayo
told Human Rights Watch about the particular impact of the evictions and the
economy on PLWHA:

I was
diagnosed in July 2004 at BulawayoCentralHospital.
After the tsunami if I tried to sell anything the police harassed me and I
couldn't support myself and five other relatives who all depended on me. We ate
a lot less than before and I became weak… I was told I needed ARVs but that the
clinics and hospitals in Bulawayo
had run out. I was told to go to a private doctor but I did not have enough
money. One of my children told me that I could maybe find ART in South Africa.
I sold some furniture and in December 2006 I took a bus from Bulawayo to Beitbridge. I paid some guides to
take me across the border and I took a bus from Musina to Johannesburg. I was too weak and sick to find
work. I lived with another woman in a room who gave me vegetables and fruit and
meat to eat and I got a little stronger. In July 2007 I went to Nazareth House
and they gave me free ARTs immediately and told me to eat well. I was strong
enough to do some domestic work and bought food with the money… I feel a lot
better and I can work now. I am afraid of going back to Zimbabwe because there is no food
or medication.[149]

The health sector in general has been plagued with
difficulties providing basic services. Shortages of key drugs and surgical supplies
are frequent[150]
and massive emigration of medical personnel has occurred. In March 2008 50
percent of health care positions, including 88 percent of primary health
nurses, were vacant.[151]

The cost of health care has repeatedly increased with
regular increases in health user fees and associated direct and indirect costs.[152]A dramatic drop in a broad range of
health indicators reflects reduced access to health care and the impact
of the HIV/AIDS epidemic. Maternal
mortality rose from 283 per 100,000 live births in 1994 to1,100 per 100,000 live births in 2005,[153]
and the life expectancy of a woman in Zimbabwe has fallen from 56 years
in 1978 to 34 years in 2006.[154]

A 62-year-old woman in Harare
told Human Rights Watch:

Before the tsunami I lived in a cottage but it was demolished.
There were four of us-me,
my daughter and her two children. Now we live under plastic sheets. Without a
house the rains destroy your stuff, the sun too. People steal things. I think
we've been hardened by living outside, so maybe that means our bodies are
stronger. But my 12-year- old granddaughter sometimes complains of chest pains.
I think she has pneumonia, she has a bad cough. She was tested for HIV and was
negative but she hasn't been tested for TB. I took her to the clinic in September.
She had scabies. You pay for the registration but the drugs are not available.
You have to go find them in a private pharmacy but no one can afford the prices
at private pharmacies. When we first went to the doctor there were only a few
scabs, but by the time I got the money, they were all over her body: on her
stomach, the backs of her thighs, everywhere.[155]

The 2007 Global Tuberculosis Control Report from the World
Health Organization ranks Zimbabwe
among 22 countries with the highest TB burden in the world.[156]Zimbabwe
has six times more TB cases than it did 20 years ago, and an estimated
two-thirds of Zimbabweans with TB are also infected with HIV. Because of the
poor health infrastructure in Zimbabwe,
little is currently known about the extent of multi-drug resistant TB (MDR-TB)
cases, but the effectiveness of TB treatment (using directly observed therapy)
is estimated to be less than 60 percent.[157] Overcrowded
living conditions and malnutrition contribute to the spread of the disease and
TB patients often fail to complete treatment because they cannot afford the
transport costs to and from health centers.

At least 6 million people in Zimbabwe-about half the population-do not have access to clean
water or sanitation.[158]Cholera outbreaks have repeatedly
occurred in recent years, as the country's water and sanitation systems have
broken down. In 2007 the collapse of Harare's largest
sewage treatment plant resulted in the discharge of 72 megaliters of raw sewage
into MukuvisiRiver,
a tributary of the ManyameRiver, which flows into LakeChivero, Harare's chief source of drinking water.[159]
In December 459 cases of cholera were reported in two high-density suburbs of Harare.[160]
In Bulawayo 11
people died from cholera and more than 300 were hospitalized in 2007.[161]Electric power outages and shortages of
chemicals to treat water have interrupted water supplies and forced individuals
to drink untreated, fecally contaminated water.

A young Zimbabwean woman in South Africa told Human Rights
Watch that two people in her family had died in the past two years of TB. They
died after they stopped taking medication because the family could not find
enough food for them to help their bodies cope with the effect of the
treatment. When a third relative fell sick with TB in 2006 she decided to try
to save his life by leaving for South
Africa to make money so she would be able to
send food home.[162]

Persecution of Zimbabweans Targeted by the Evictions

To successfully claim refugee status under the 1951 Refugee
Convention, or the OAU Convention 1969, asylum seekers need to show that they
cannot be sent back to their country because they have a well-founded fear of
being persecuted on account of their "race, religion, nationality, membership
of a particular social group or political opinion."[164] The
OAU Convention also considers a refugee to be "every person who, owing to…
events seriously disturbing public order in either part or the whole of his
country of origin or nationality, is compelled to leave his place of habitual
residence in order to seek refuge." Neither Refugee Convention defines the term
"being persecuted," but persecution is generally regarded as a "serious harm"
that the government is responsible for causing or for being unwilling or unable
to prevent. This definition can be summarized as "Persecution = Serious Harm +
The Failure of State Protection."[165]

Zimbabweans who were targeted by the evictions have a strong
claim of a well-founded fear of being persecuted. This is because their rights
to shelter, work, food, and in many cases education and health care were, and
continue to be violated to such an extent that they would suffer serious harm
if returned to Zimbabwe, and because the Zimbabwean government, responsible for
the original rights violations, continues to fail to protect them against the
effects of those rights violations. Zimbabweans targeted by the evictions can
argue that they will be persecuted because of the political threat they are
perceived to pose and the "political opinion" which the Zimbabwean government
thinks they had and still have.

To establish a refugee claim under the 1951 Refugee Convention,
Zimbabweans affected by the evictions have to show three things:[166]
(i) that they have good reason[167]
for fearing serious harm if returned to Zimbabwe because the Zimbabwean
government will fail to protect them against certain rights violations; (ii)
that the Zimbabwean government regards them as having a "political opinion"
and/or as members of a "particular social group"; and (iii) that their fear of
being persecuted is because of their
perceived "political opinion" and/or membership of a "particular social group."

Zimbabweans Targeted by the Evictions Suffered Serious Harm

Zimbabweans targeted by the evictions suffered specific rights
violations that caused "serious harm." This harm continues to this day and into
the foreseeable future because of a continued failure by the Zimbabwean government
to end it.

Serious harm is caused by certain types of serious violations
of internationally protected human rights, as set out in particular in the
International Covenant on Civil and Political Rights (ICCPR),[168]
the International Covenant on Economic, Social and Cultural Rights (ICESCR),[169]
and the African Charter on Human and Peoples' Rights (African Charter).[170] Serious harm
occurs either when the core of a
right has been violated or when a number of non-core
violations have the cumulative effect that leads to serious harm.[171]

In the case of Zimbabweans claiming asylum in many countries
worldwide over the past few years, examples of "core" civil and political rights
violations have involved (fear of) killings, torture, rape, arbitrary
detention, and inhuman and degrading treatment.[172]
However the evictions violated many core economic and social rights including
the rights to shelter, work, food, and, in many cases, education, and health care.
According to the United Nations Committee on Economic, Social and Cultural
Rights (ESCR Committee), which reviews states' compliance with the ICESCR, states have a number of immediate
binding legal obligations with regards to economic and social rights: (i) a
state can never discriminate nor justify discrimination, for example with
reference to resources; (ii) states have a duty not to interfere directly or
indirectly with the enjoyment of a right, including the obligation not to take "retrogressive
steps" that destroy access to or enjoyment of a right; and (iii) states have a
core obligation to ensure the satisfaction of minimum essential levels of each
right.

The right
to adequate housing

Forced
evictions are the most obvious violation of a government's obligations to
ensure people's right to shelter. The ESCR Committeedefines forced evictions as, "the permanent or
temporary removal against their will of individuals, families and/or
communities from the homes and/or land which they occupy, without the provision
of, and access to, appropriate forms of legal or other protection."[173]
It says that forced evictions constitute "a gross violation of human rights,"
and are "incompatible with the requirements of the Covenant [ICESCR]."[174]
The African Commission on Human and People's Rights has also affirmed that
forced evictions are serious violations of the African Charter and draws on the
ESCR Committee's characterization of forced evictions.[175]

The destruction of people's homes during the evictions
constituted "forced evictions" and, therefore, violated the core of the right
to housing of people targeted by the evictions. The Zimbabwean government
failed to provide appropriate forms of legal or other protection to those
targeted by the evictions, putting it in clear violation of the right to
adequate housing and the obligation not to carry out forced evictions. The
testimonies of Zimbabweans targeted by the evictions show how government
authorities destroyed their homes and provided no protection to the people
displaced by the evictions, and how this continues to be the case two-and-a-half
years after they took place.

Zimbabweans in South Africa, including this
35-year-old married woman with three children, told Human Rights Watch how the
destruction of their property had left them homeless and destitute:

The five of us were living in a cottage in Glenora, Harare. My husband had a
carpentry shop in the cottage. They destroyed everything, all the tools. We had
nowhere to go. We slept outside for one week and then went to the rural areas
to live with my parents. There was no work. With no house and no workshop for
my husband I came to South
Africa to find work.[176]

Two-and-a-half years on the government has continued to fail
to put an end to the effect of this violation, leading to continued serious
harm. Even the most vulnerable
people interviewed by Human Rights Watch in Zimbabwe have received no social
assistance from the authorities and still live in precarious housing
situations. A 62-year-old widow told of her continuing predicament two years
after being evicted:

I lived for six weeks with other people in Mbare, under the
tree of Stoddard hall where heroes are buried. They arrested people for staying
outside so I asked a widow if I could stay in her courtyard, just inside the
wall. I have some plastic sheets to cover myself if it rains. Now it'sbeen over two years. I'm trying to find
somewhere else to live. The landlord tells me that she only lets me live in her
courtyard because she doesn't want to see me in the street. I am afraid she'll
become tired of me. I go from house to house and ask if there is a room to rent
but there is no space. I try to sell vegetables but the police stop me so I
struggle to find food. If I have it I eat sadza
and porridge in the morning. I have not had meat for two-and-a-half years.[177]

Many people
interviewed by Human Rights Watch spoke of the precariousness of their housing
situation two-and-a-half years after the evictions. A 34-year-old man in one of
Harare's
suburbs took Human Rights Watch to see a location where 40 families had found
temporary shelter in 2006 but who were now all being told to leave the area. He
was living with his wife and 14-year-old daughter in an upside-down steel water
tank:

After the
tsunami I had to stop my work as a qualified mechanic. The cooperative's
workshop was destroyed and the government said everyone had to register. I
could not afford the registration fee. I had no money and could not pay rent
anywhere. So we came to live in this water tank. If we are lucky we eat sadza two times a day and we are hungry.
We have no money for anything else. In Congo where there is war people
need food and shelter. Here in Zimbabwe
we also need food and shelter.[178]

The right to work

The ESCR Committee has said that the core of the right to
work includes "the right of access to employment, especially for disadvantaged
and marginalized individuals and groups, permitting them to live a life of
dignity."[179]
Furthermore, a government violates its obligations when it "deni[es]… access to
work to particular individuals or groups, whether such discrimination is based
on legislation or practice."[180]
The committee notes that, "retrogressive measures taken in relation to the
right to work are not permissible," and that such measures include "denial of
access to employment to particular individuals or groups, whether such
discrimination is based on legislation or
practice or the adoption of policies that are manifestly incompatible with
international legal obligations relating to the right to work."[181]

Therefore, a complete denial of the right to work, including
denial based on policy or practice, involves a core violation. This can happen
either as a result of the government specifically targeting a particular
profession (discrimination), or through targeting the way of working if under the circumstances that way of working
is the only option available to the person affected and, therefore, makes
finding work virtually impossible.[182]

Some courts have linked the denial of an opportunity to earn
a livelihood with the right to life, saying that depending on the context such
a denial "is the equivalent of a sentence to death by means of slow starvation."[183]
Others have referred both to the right to life and the right to health: "[a]n
inability to earn a living or to find anywhere to live can result in
destitution and at least potential damage to health and even life."[184]

Before carrying out the evictions, the Zimbabwean government
was fully aware of the generally depressed economic conditions country-wide
with which the victims of the evictions would have to cope. Given the
dependency of the Zimbabwean economy on the informal sector, it is inevitable
that the Zimbabwean authorities were aware that informal jobs in and around the
urban areas were the only viable work opportunities for the people they
targeted for eviction, and that after the evictions it would be impossible for
them to find alternative work (and thereby access to adequate housing, food,
health care, and education).

The testimony of those targeted by the evictions show how
the evictions and the ban on informal trading combined to make finding work
impossible. A 30-year-old
woman from Glenore, Harare,
explained how the ban on trading and the impossibility of obtaining a trading
permit forced her to leave the city and to try, in vain, to survive in the
rural areas:

Before the
tsunami I was selling sweets, ice drinks and vegetables. I sold them at the
corner of our house and at a market near the taxi stand in Glenore. My two
sisters, my mother and my parents all depended on me. Afterwards I tried to
continue but the police stopped me. They made me pay a fine each time and
confiscated my goods. The nearest official trading post was 15 kilometers from
Glenore and I couldn't afford the bus fare. I was told that I would have to pay
every month for a permit. The cost was too high. Friends also told me that even
if I had the money only people with ZANU-PF cars would get a permit. I went to
stay with my mother's family in the rural areas but the village had run out of
seeds and fertilizer because they used to buy it with money sent back from
their children in the cities. After the tsunami their children stopped sending
money so there was no food and no work. Life was impossible there so I came to South Africa
in January 2006.[185]

A
41-year-old builder from Mutare described the effect of losing his home and his
work and how, as a perceived supporter of the opposition, he was then unwelcome
in the rural areas even as an internally displaced person (IDP) and was,
therefore, unable to feed his family:

I was
living in Mutare with my wife and two daughters who were going to school. I was
a builder, working in the poor areas which were all destroyed. They destroyed
my house and then there was no more work because all building work in those
areas was then illegal. There was nowhere to live and nowhere to work so we
went to the rural areas in Bikita District. There was no work there. No one had
any money for seeds or fertilizer because no one was sending back money anymore
from the city because of the tsunami. Even if we had had seeds and fertilizer I
wouldn't have been able to plough the land. The village elders said that we
were opposition supporters who had come from the cities to cause problems and
they wanted us to leave. My daughters stopped going to secondary school because
I could not pay the fees. My family was very hungry. They hardly ate anything.
Since I have been working in South
Africa in February 2006 I have sent them
SAR700 (US$110) and groceries every month. My daughters started going to school
again in June 2006.[186]

The authorities prevented people who stayed in the urban
areas from surviving through even the most minimal or informal trading. A 32-year-old woman, the breadwinner
for her mother, brother, and three children, said:

Sometimes I try to sell vegetables at Glenview
shopping center. It's hard to make money because everyone is doing the same and
the police always chase us away. They take our vegetables and they arrest
people. The last time I was arrested was a month ago. They fined me and took
everything. My brother used to sell firewood but he was arrested so many times
it was not worth it. After the tsunami most women cannot find money. Some, if
they can't sell their vegetables, have no choice but to sell themselves. Or
they try to leave the country.[187]

Those who went to the rural areas say that there was no work
to be found in those areas, a fact of which the Zimbabwean government would
have been well aware before it carried out the evictions. A 24-year-old man
from Harare
told Human Rights Watch how the authorities forced him to the rural areas,
where he could find no way to support his family:

Before the
tsunami I was working as a trader at the Copacabana market in Harare. I supported many people including my
brother who was diagnosed as HIV+ in September 2004. I paid for his drugs
[ARVs]. When they destroyed all our stalls and stole my goods I had nothing
left. I was one of the people taken to Caledonian Farm [a holding center] and I
was not working. After two months they forced me to go back to the rural areas
and there was no work there. I had no money and so my brother could not buy any
more drugs. He was eating less and less because I had no money to buy him food.
He got very weak and he died in March 2006.[188]

The right
to adequate food

The ESCR
Committee has stated that the core of the right to adequate food includes "[t]he
availability of food in a quantity and quality sufficient to satisfy the
dietary needs of individuals… in ways that are sustainable and that do not
interfere with the enjoyment of other human rights."[189] It
also notes that, "States have a core obligation to take the necessary action to
mitigate and alleviate hunger…."[190]
Therefore, any deliberate government action that hinders or denies access to food
"sufficient to satisfy the dietary needs" of an individual constitutes a core
violation.

The right to food
is also implicitly recognized in the African Charter, in such provisions as the
right to life (Article 4), the right to health (Article 16), and the right to
economic, social and cultural development (Article 22). The African Commission
has ruled that "[t]he right to food is inseparably linked to the dignity of
human beings and is, therefore, essential for the enjoyment and fulfillment of
such other rights as health, education, work and political participation." The commission
went on to state that both the African Charter and international law require
and bind parties to the Charter to protect and improve existing food sources
and to ensure access to adequate food for all citizens. It identifies the
minimum core of the right to food as including an obligation not to destroy or
contaminate food sources and not to prevent peoples' efforts to feed
themselves.[191]

The right to food is intimately connected to the right to
work, as set out above. When the government acts in a way that violates the
core of the right to work without putting in place alternative mechanisms (such
as welfare support) to ensure that those affected can access food, the core of
the right to food has also been violated.

The testimony of those targeted by the evictions show how
the evictions and the ban on informal trading combined to make finding work,
and, therefore, "sufficient" food, impossible. A 50-year-old woman in Harare told Human Rights Watch of the chronic
hunger she and her family have experienced since being evicted:

I was
living in a one-room cottage with my granddaughter. I worked in a clothes
factory but it closed in 2004. Then I sold vegetables to survive. I paid for
the rent and my granddaughter's school fees and a little bit to eat. We were
often hungry. Then they came and destroyed our room. I went with my
granddaughter to live in the Roman Catholic Church in Mbare. They gave us a
garage to share with one woman for three months and they gave us a little food.
But then we had to leave. We lived on empty land near the church for one week
and then we found an open space near a road where I sold firewood. We slept
under blankets in the open. We worked in a maize field and made a little money.
I bought plastic sheets and made a small tent. I still live there now. The sun
has broken the plastic and the rain comes through. My granddaughter stopped
going to school in January 2006. We had almost no food. For some months a
charity called ZIMPRO gave me some food which helped us to survive. We are
always hungry. Three months ago my granddaughter found a place to stay with a
family. She comes to see me every morning and says "Gogo [grandmother], why
don't you leave here" and I say "where can I go?"[192]

The right to health

The ESCR Committee has said that the core of the right to
health includes ensuring non-discriminatory access to health facilities,
especially for vulnerable or marginalized groups, the equitable distribution of
all health facilities, goods and services, providing essential drugs, access to
the minimum essential food which is nutritionally adequate and safe, access to
basic shelter, housing andsanitation, an adequate supply of safe and
potable water, prevention, treatment and control of epidemic and endemic
diseases, and provision of education and access to information for important
health problems.[193]

In drawing attention to the combined role played by food,
water, and housing in ensuring adequate health, the ESCR Committee is stressing
the interdependence of economic and social rights. In other words, when a
government violates the right to housing or food, it is also contributing
toward a possible violation of the right to health.

People targeted by the evictions saw their right to health
care seriously affected, both because of the resultant loss of income and
because of the government's failure to put in place additional social welfare
support and to implement an effective user fee exemption program. This must be
understood within the broader context of the Zimbabwean government's more
generalized failure to ensure the progressive realization of the right to
health.[194]

A 55-year-old woman in Harare
showed Human Rights Watch the death certificates of her husband and five
siblings who had all died from HIV. She said she had two cottages destroyed by
the evictions, reducing her income and ability to care for her extended family:

I take care of my mother, seven nieces and seven
grandchildren. I went to the office of social welfare last year and they said
they would only waive health fees if you were older than 60. They told me to go
and find work. I have high blood pressure. My whole body aches. I can't go to
the doctor-I don't have
the money.[195]

In 2006
Human Rights Watch reported on how the evictions had made PLWHA even more
vulnerable, leading to a loss of income and, therefore, lack of access to fee-based
health care.[196]
As set out above, in February 2008 PLWHA told Human Rights Watch how the
evictions and the ongoing ban on informal trading had continued to make their
access to care precarious and at times impossible.[197]

The evictions, and the lack of subsequent steps to mitigate
their impact, have constituted a clear retrogressive step in the realization of
the right to health and, therefore, a clear violation of the right to health.

The right to education

The right to free and compulsory primary education is an
immediately binding obligation on all states party to the ICESCR. The ESCR Committee
has stated that the core of the right to education includes an "obligation to
ensure the right of access to public educational institutions and programmes on
a non-discriminatory basis…."[198]

Some courts have ruled that denial of the fundamental right
to primary school education amounts to persecution.[199] Under the
principle set out above that a number of non-core
violations of rights may have a cumulative effect that leads to serious harm, asylum
adjudicators may also consider that deprivation of education in conjunction
with a number of other violations of economic and social rights cumulatively
constitutes persecution.

The testimony of those targeted by the evictions show how
the evictions and the ban on informal trading led to a loss of work and income
which meant that many parents were no longer able to pay for their children's
school fees. A 47-year-old man told Human Rights Watch:

I was living with my wife and four children, age 15, seven,
four, and two, in a cottage in Porta Farm near Harare. I was a basket weaver and I was
paying the school fees for my eldest two. They destroyed my cottage and my
business, everything. I had no more money and my two daughters stopped going to
school immediately. The police took us to the Caledonia Farm transit camp.
There was no work there and there was no work in the rural areas and so I came
to South Africa.
My wife and children still live in the camp now. I send enough money back to
help them with food but my daughters still aren't going to school.[200]

Summary of ongoing serious harm

In carrying out the evictions, the Zimbabwean government
violated the core of a number of economic and social rights.[201]
Both individually and cumulatively these violations led to serious harm. To
this day, the Zimbabwean government has failed to address these violations.

The act of evicting the urban poor living in high-density
suburbs, therefore, involved a violation of rights leading to serious harm and
amounts to a failure of state protection. Equally, the failure by the
Zimbabwean government to address the effects of these violations is an ongoing
violation of these rights.

Showing that Zimbabweans Targeted by the Evictions were Viewed
as Having a "Political Opinion"

The serious harm suffered by Zimbabweans targeted by the
evictions was caused and continues to this day because they fall within one or two
of the five protected grounds mentioned in the 1951 Refugee Convention: race,
religion, nationality, membership of a particular social group, or political
opinion. Zimbabweans evictees were targeted because of their "political
opinion." They, therefore, fear
persecution on the grounds of a "political opinion."

Refugee law
does not require that a refugee actually has a political opinion. It is enough
if the agent of persecution attributes (or imputes) an opinion to the refugee,
even if incorrectly. Because it may be difficult for a refugee to provide
direct evidence of what the agent of persecution thinks or believes, a
decision-maker must look at all the circumstances.[202]Because
the political opinion at issue can be imputed to the refugee, it is enough for
the agent of persecution to believe that the person is an actual or potential
threat to its power.[203]

While there
is no evidence of how many of the 700,000 people directly targeted by the
evictions supported the opposition, or how many had a political opinion about
Zimbabwe's ruling party or government, to establish a fear of persecution on
account of a "political opinion" under refugee law it is enough to show that
the persecutor, in this case the government, imputed to the urban poor living
in high-density suburbs either an opinion that was generally opposed to ZANU-PF
and/or active support for the Zimbabwean opposition.

As noted in
Chapter V of this report, which examined the political context of the forced
evictions beyond the reasons nominally provided by the government for them, the
circumstances of the evictions suggest that at least one of the reasons why
they took place was because ZANU-PF was concerned about a potential uprising in
urban areas against the government which would have challenged the government's
power.

Showing that Zimbabweans Targeted by the Evictions Fear
Persecution Because of their Perceived "Political Opinion"

Finally, Zimbabwean asylum seekers targeted by the evictions
fear persecution "for reasons of" their political opinion. Their fear of suffering
serious harm is connected to the Zimbabwean government's belief that they hold
opinions that threaten the government's power.

There are three ways in which they may successfully argue
that they fear serious harm on return to their country because of their political
opinion: (i) they could provide direct evidence of the government's deliberate failure
to protect them against serious harm for that reason; (ii) they could provide
circumstantial evidence that the government's failure to protect them for that
reason was intentional; or (iii) without having to prove the government's
reason for the evictions, they could argue that the government in fact
seriously harmed them or failed to protect them against being persecuted,
simply by virtue of the fact that they were viewed as having a political
opinion.[204]

One element of direct evidencethat the Zimbabwean government intended to persecute the people
whom it forcefully evicted for reasons of their political opinion and/or social
group membership is suggested by the name of the campaign itself: "Operation Murambatsvina" ("Operation Clear
the Filth"). This was a dehumanizing and prejudicial characterization of those
being evicted that indicates the government's perception of them as sharing a
common negative characteristic. Indirect evidencewould suggest that the urban poor living in high-density suburbs
were at particular risk of being targeted by the government and that the
severity of the harm suffered, which completely destroyed the evictees' ability
to survive in the urban centers, was in the government's political interest.
This is because the circumstantial evidence, as set out in Chapter V of this
report, suggests that the government undertook these actions to strengthen
itself and to weaken its actual, perceived, or potential opponents.

In relation
to both the direct and indirect evidence approaches, refugee law recognizes
that if a government has a number of reasons for acting in a way that causes
serious harm, it is enough if one of those reasons relates to the person's
political opinion (or any of the other three categories listed in the
Convention). In addition, that reason does not have to be the main reason why
the government acted in the way it did. It simply has to be one of the reasons.[205]
In the case of the Zimbabwean government this means, for example, that if one
reason for the evictions really was to "clean the cities," and a second reason
was that it would get rid of potential political opposition, then this second
reason is enough for a person affected by the evictions to argue that she was
persecuted because of her political opinion.

Finally, the third way in which Zimbabweans targeted by Operation Murambatsvina can make their
case is to ask an adjudicator to look at the situation from the victim's point
of view. Under this approach, the key issue in determining whether a person is
"being persecuted" is the predicament of the victim and the need for a remedy,
not the intent of the persecutor.

If, for example, the Zimbabwean government stated that its
reason for forcibly evicting the urban poor living in high-density suburbs was
to provide for the greater good of orderly and clean cities and not to harm
anyone, but its actions nevertheless did, in fact, disproportionately harm
those who were members of this particular social group and/or who were imputed
to be opponents of the government, then they could argue that they qualify as
having "been persecuted."[206]

Other Considerations under Refugee Law Affecting Claims of
Zimbabweans Targeted by the Evictions

Adjudicators considering claims by Zimbabweans targeted by
the evictions will need to consider three further points under refugee law.

Mixed motives

A person claiming asylum may have many reasons for leaving
her country. Having economic or personal reasons for leaving does not prevent
her from making a successful refugee claim. The only requirement in refugee law
is that the person fears return on at least one of the five protected grounds.
This fear need not be the central reason for the unwillingness or inability to
return.

In virtually all cases, people targeted by the evictions
have "mixed motives" for leaving and for not wanting to return to Zimbabwe.
The poor economic conditions in Zimbabwe
and the desire to find work in South Africa
are obvious and central motives for many of the evictees, as they are for
hundreds of thousands of other Zimbabweans in South Africa. The existence of
other motives, including closely related economic ones, should not, however,
have any bearing on the validity of a refugee claim.

Although a decision-maker or a court in South Africa may find
it "difficult to separate the [serious harm] effects of persecutory behavior
from the impact of a generally depressed or poor economy,"[207]
the adjudicator should focus on the connection (or nexus) between the serious
harm suffered and the real or imputed political opinion and/or membership in
the particular social group of the asylum seeker in question. If this
connection is present, then that distinguishes the asylum seeker's particular
circumstances from the generalized suffering faced by the Zimbabwean
population.

Once this harm has been identified and connected to the
individual's identity or beliefs, her asylum claim can be successful regardless
of her other motivations.

Voluntary re-establishment in country where
persecution was feared

As shown by the testimonies, many documented and
undocumented Zimbabweans in South Africa
regularly move back and forth between Zimbabwe
and South Africa
to take essential foodstuffs and money to their families. Refugee law allows
Zimbabwean refugees and asylum seekers to briefly return to Zimbabwe and then come back to South Africa without losing their refugee
or asylum-seeker status.

The 1951 Convention states that the Convention "shall cease
to apply to [a] person… if… he has voluntarily
re-established himself in the country which he left or outside which he
remained owing to fear of persecution."[208]
Refugee law states that voluntary establishment is not the same thing as simply
returning. This means that recognized refugees can return to their home country
for brief periods of time and should not have their refugee status revoked
simply because they have stepped across the border.

UNHCR's Handbook on
Procedures and Criteria for Determining Refugee Status states that, "[v]oluntary
re-establishment… is to be understood as return to the country of nationality….
with a view to permanently residing
there. A temporary visit by a refugee to
his former home country… does not constitute "re-establishment" and will
not involve loss of refugee status" (emphasis added).[209]

UNHCR explicitly recognizes that in some cases governments
do not agree and that they consider that such people lose their refugee status.
UNHCR states that, "[c]ases of this kind should be judged on their individual
merits. Visiting an old or sick parent will have a different bearing on the
refugee's relation to his… country than regular visits to that country spent on
holidays or for the purpose of establishing business relations."[210]

As UNHCR suggests, to understand whether a refugee remains
at risk of persecution in his country of origin despite briefly returning home,
courts should look at each case individually. They should look at the nature of
the risk that was part of the original asylum claim and at what the person does
when he is back in his country of origin. They should also look at the broad
situation in the country of origin.

Nature of risk:
the nature of the risk in the original asylum claim affects how a
decision-maker looks at the fact that a refugee returned briefly to her
country. For example, if a refugee claimed that she was afraid of being
detained and tortured by police because of her high political profile, then
returning to the country, even if only for a few days, will be extremely risky.
In such a case returning suggests that she no longer fears persecution. On the
other hand, if a refugee claims that the risk of persecution relates to a
denial, on political grounds, of access to food aid then a return to the
country for even a few weeks is clearly far less risky than in the first
example.

Activity upon return:
what the person does when he goes back is equally important. For example, if a
person who says he is well known and fears arrest by the police goes to the
capital city and meets with fellow political activists and shows his face in public,
this suggests that he no longer fears persecution. Similarly, if that same
person goes back for two days in order to visit a dying relative and keeps a
low profile, this suggests that he continues to fear persecution.

For people targeted by the evictions, the nature of the risk
is the ongoing violation of their economic and social rights to shelter,
livelihood, and food. Brief returns to Zimbabwe are, therefore, not risky
and are not evidence that they no longer fear persecution. As noted in the testimony,
the reason they return is usually to make sure that their family can receive
the food or money that they have earned in South Africa. This coping mechanism
reinforces their very argument for refugee status, namely that the serious harm
that they and their families have suffered involves violations of their core
economic and social rights.

Split families

In most of the interviews Human Rights Watch conducted with
people targeted by the evictions only one or two of the family members-the breadwinners-had come to South Africa while the rest of the family often
remained in Zimbabwe.
For two reasons this should not affect the asylum claim of the breadwinners who
left.

First, through finding work and returning to Zimbabwe
for short periods of time these breadwinners are trying to help themselves and
their families cope with the effects of the persecution (ongoing violations of
a series of economic and social rights). In other words, their role as
breadwinners and their activity in South Africa helps to reinforce
their claim of suffering serious harm (related to their right to shelter, work,
and food) as a result of being targeted by the evictions.

Second, the border area between Zimbabwe
and South Africa
is dangerous with many reports of rape, extortion, and theft.[211]
Many people targeted by the evictions take the risk of entering South Africa
through an informal border crossing.[212]
Women, children, the sick, and the elderly will understandably only take this
dangerous journey as a last option, while able-bodied men, better able to
defend themselves against criminals operating on the border, are more likely to
cross into South Africa.

Finally, Zimbabweans know very well that there is little
protection for them in South
Africa: people sleep in the open, in crowded
rooms, and with no guarantee of work or education. The May 2008 violence
against foreigners in South Africa
underlines the precariousness and vulnerability of Zimbabweans' position in South Africa.
As a result, the best way for the more vulnerable family members to cope with
the effects of the evictions is to remain in Zimbabwe. Moving to South Africa
is a last resort.

Dealing with Potentially High Numbers of Asylum Claims by People
Targeted by the Evictions

Almost 40 per cent of the 99 Zimbabweans interviewed by Human
Rights Watch in Cape
Town, Johannesburg,
and Pretoria in
October and November 2007 were directly targeted by the evictions. Given that
up to 700,000 people are estimated to have been directly targeted by the
evictions, it is possible that tens of thousands of such people are in South Africa.
Most will have strong claims for asylum.

On the one hand, South Africa has clear obligations
under refugee law to ensure that these claims are fairly adjudicated on a
case-by-case basis that looks closely at the evidence of each claim. On the
other hand, the potentially high number of claims means that the asylum system,
already under pressure, will have difficulties in responding to this challenge.

One way of addressing this challenge will be to adopt this
report's recommendation for a "temporary immigration exemption status for
Zimbabweans." However, if this recommendation is not implemented, special
procedures may have to be implemented to deal with such claims. Although all
Refugee Status Determination Officers should be trained in the applicable law,
such procedures could take the form of a specially created team of Refugee
Status Determination Officers in all of South Africa's five Refugee Reception
Offices, who will have the specific task (and expertise required) to review
such claims.

VIII. Failings in the Asylum and Deportation Systems Leading to Refoulement of Zimbabweans

Overview

In late 2005 Human Rights Watch reported on the failings of South Africa's
asylum system.[213]
The report described how the system prevents many asylum seekers from lodging
their claims, how it fails to efficiently and fairly adjudicate claims, and how
its failure to respect asylum seekers' rights to documentation confirming their
status creates a general sense of insecurity and leads to arbitrary arrest,
detention, and unlawful deportation.

Throughout 2006 and 2007 South African civil society closely
monitored, advocated, negotiated, and litigated to try to improve various
aspects of the struggling asylum system. Despite these efforts, the South
African government continues to violate asylum seekers' procedural rights,
including their right to adequate documentation confirming their status, and
their right to have their substantive claims properly adjudicated.[214]

An important part of the ongoing challenges faced by the
system is the continuous massive backlog of cases. Despite two initiatives
which have attempted to reduce this number, any progress made risks being
rendered meaningless by the number of recent new applications and the asylum
system's incapacity to process them. With a new backlog of over 100,000 cases,
there is little hope that the asylum system will be able to respond to the
significant challenges it faces.

Under South African and international law it is unlawful to
deport anyone who has expressed an intention to claim asylum or anyone who has
already made an asylum claim. Deporting asylum seekers violates the most
fundamental principle of refugee law, the principle of non-refoulement.A person's right not to be refouled is the right not to be
forcibly returned to a place where she would face a threat of persecution or a
real risk of torture or cruel, inhuman or degrading treatment or punishment.[215]

In 2005 UNHCR told Human Rights Watch that asylum seekers and
refugees had been deported out of the Lindela Repatriation Centre because staff
working there were unaware of procedures and standards that govern the legal
status of refugees and asylum seekers.[216]

A leading South African report of 2007 concluded that the
South African deportation system continued to be dysfunctional, violating a
wide range of procedural rights and leading to the unlawful detention and
deportation of asylum seekers.[217]
Many of the deportation system's failings can be traced back directly to the
failings of the asylum system.[218] Little has changed since then.

Ongoing Failings in South Africa's
Asylum System Contributing to a Generalized High Risk of Refoulement

Entry
into South Africa and risk of refoulement from
the border areas

Zimbabwe shares 225 kilometers of porous
border with South Africa.
The vast majority of Zimbabweans claiming asylum in South Africa enter the country
overland. Because of the limited choice of roads, they mostly enter through or
near the Beitbridge-Musina border post, passing either through the official
border post or through an informal border crossing. In both cases Zimbabweans
prefer not to claim asylum at the border,[219] but instead lodge their claims
directly at one of South Africa's
five Refugee Reception Offices (offices) in Cape Town,
Durban, Johannesburg,[220]Port Elizabeth, or Pretoria.[221]

South
African law provides that asylum seekers can apply for asylum by claiming
asylum either at a border post or after apprehension by police, military, or
immigration authorities,[222]
in which case immigration officials should issue them with a non-renewable
14-day asylum transit permit,[223]
during which time they should officially register their claim at one of the
five offices in-country. Alternatively, the law allows border crossers who have
not claimed at the border and who are not apprehended to apply "without delay"
directly at one of the five offices.[224]

This system
is designed to ensure that people wishing to claim asylum, whether entering the
country through a formal border post or not, are given an official document
(the 14-day asylum transit permit) which protects them against arrest and
deportation until they have lodged their asylum claim at one of the five
offices.

Despite
this system, recent reports have documented that Zimbabweans in the border
areas, particularly in and around Musina, who intend to claim asylum in-country
face serious violations of their rights, including arbitrary arrest, detention,
and unlawful deportation constituting refoulement.[225]

Zimbabweans'
efforts to seek asylum are sometimes thwarted because many immigration officials
and the police are insufficiently trained in basic refugee law and related
procedures; ad hoc,fast-track
deportations in the border region also limit Zimbabweans' opportunities to claim
asylum.[226]
Border police sometimes view legal procedures as too cumbersome and
time-consuming or irrelevant given what they consider to be the more pressing
priority of protecting the border.[227]

This climate is undoubtedly reinforced by government language,
as reflected in the comments made by border officials at the border noted
earlier,[228]
that Zimbabweans cannot possibly have valid asylum claims.

Absent
proper training and clear directions to officials working in the border areas
on basic refugee law and on how Zimbabweans can lodge asylum claims, such
unlawful arrest, detention, and deportation in the border areas will continue.
Given that many Zimbabweans wishing to claim asylum in-country-including
thousands targeted by Operation
Murambatsvina-have potentially valid refugee claims, current deportation
practices in the border areas will inevitably involve numerous violations of
the principle of non-refoulement.

Obstacles to
Gaining Access to the Asylum Procedure and Risk of Refoulement
In-Country

Obstacles
to gaining initial access to Refugee Reception Offices

Once
in-country, asylum seekers should register their claim without delay at one of
the five Refugee Reception Offices. If, as explained above, a border guard or
immigration official has issued them with an asylum transit permit , they
should apply for asylum at one of these offices within 14 days.

Refugee
Reception Officers (RROs) who work in the five offices issue "asylum seeker
permits."[229]
Valid for renewable three month periods,[230]
these permits are far more than just a piece of paper: they give asylum seekers
legal status in South Africa,
protecting them from arbitrary arrest, detention, and deportation, and
entitling them to work and study in South Africa.[231]

However,
many Zimbabweans find it impossible to obtain their asylum seeker permit within
the allotted time period of the 14-day asylum transit permit. This is because
of the lengthy queues and other difficulties they face when trying to enter
Refugee Reception Offices, problems that have existed and have not improved for
a number of years.[232]
Access is particularly difficult in the Pretoria
and Johannesburg
offices, where Zimbabweans are only admitted on Thursdays and Fridays.[233]
If the 14 days have expired and they do not have an asylum seeker permit, they
become undocumented and, therefore, "illegal foreigners." They are then liable
to arrest and deportation.[234]
Similarly, if a person has entered the country through an informal border
crossing, manages to reach one of the five offices without being stopped by the
police (and, therefore, does not have a 14-day asylum transit permit) but is
then unable to get inside the office, they also become an "illegal foreigner,"
liable to arrest and deportation.

As in the
case of Zimbabweans wishing to claim asylum being deported from the border
areas soon after they have entered the country, the same happens to Zimbabweans
who manage to reach the gates of the Refugee Reception Offices but are unable
to get inside to register their claims; the police then arrest them for being
"undocumented."

A Department of Home Affairs (DHA)-funded study estimated in
September 2007 that 470 asylum seekers were being "turned away" every day at
the five Refugee Reception Offices.[235]

The South
African authorities are bound to ensure that asylum seekers can access the
documentation to which they are entitled under the Refugees Act. The South
African Constitution provides that everyone has the right to access
administrative procedures that are "reasonable and procedurally fair," and that
national legislation, in this case the Refugees Act, must give effect to this
right.[236]
However, as explained above, the procedures in (and adopted under) the Refugees
Act are not being enforced. In failing to enforce applicable procedures the
South African authorities are directly responsible for heightening the risk of refoulement of Zimbabwean asylum
seekers.

Obstacles
to receiving an asylum seeker permit even after lodging an asylum claim

The law provides that an RRO "must" issue an asylum seeker
with an asylum seeker permit.[237]
For a number of years the Refugee Directorate failed in many cases to issue
these permits, but rather issued "appointment slips" which required the person
to return to the same office after anything from a few days to six months.[238]
This practice was successfully challenged in court,[239]
but was replaced by an even more questionable practice of "verbal
appointments," which are given to the vast majority of applicants in place of
the asylum seeker permit to which they are entitled by law.[240]

Currently, South
Africa has one official detention center,
The Lindela Repatriation Center, where "illegal foreigners" are detained while
awaiting deportation.[241]
Officials at the center, located 30 kilometers from Johannesburg, have said that they do not
recognize the validity of any document other than the asylum seeker permit.[242]
Therefore, an asylum seeker with only a "verbal appointment" who is transferred
to Lindela will likely be deported, an act that violates the prohibition on refoulement.[243]

Obstacles
to gaining subsequent access to Refugee Reception Offices

When asylum
seekers are given an asylum seeker's permit with an expiration date (usually
after three months) or a "verbal appointment" to return, they must return to
any of the five Refugee Reception Offices on the correct date. If they do not
do so, they become undocumented and liable to arrest and deportation. However,
instead of gaining rapid access to the offices, they must once again stand in
the standard queues, together with new claimants. Human Rights Watch heard from
numerous Zimbabweans that they had repeatedly tried to renew their permits, but
that because of the length of queues they had been unable to get into the
offices, even after standing and sleeping in line for 24 hours or more.[244]

Aside from
the cost and time involved in reaching one of the offices, many Zimbabweans
cannot afford to lose a precious day's work or even a job because of being
absent from work for an entire day, especially if there is no guarantee that
they will gain access to the office at the end of the wait. In such cases they
become undocumented and through no fault of their own run the risk of arrest
and deportation.

The South
African authorities have an obligation to ensure that asylum seekers can renew their
documentation without facing unfair procedural obstacles. By failing to put in
place efficient procedures, they heighten the risk of refoulement of Zimbabwean asylum seekers.

Obstacles to
Gaining Access to Refugee Status Determination: Delays in Processing Claims,
Low Quality Decision-Making, and Limits to Appeals System Resulting in Risk of Refoulement

The 1998
Refugees Act provides that a Refugee Status Determination Officer (RSDO) will
promptly review an asylum claim lodged with an RRO. However, there is an
ongoing shortage of RSDOs; the DHA-funded study said that the government needed
at least another 100 RSDOs in 2007 for its asylum system to function properly
whilst a separate independent study accepted by the DHA says a further 180 are
needed.[245]
This shortage continues to lead to long delays-measured in years rather than months-before an
RSDO reviews an asylum claim.[246]
While the claim is pending, asylum seekers with asylum seeker permits or with
verbal appointments must return regularly to the office to renew their permit
or verbal appointment. On each occasion they face the same obstacles, constantly
running the risk of becoming undocumented because of difficulties in gaining
access to the office.

Refugee law
is complex and requires well-trained officials who are able to judge the
applicant's story against applicable refugee and human rights law. Because
South Africa's
asylum system does not provide asylum seekers with legal aid, the vast majority
of asylum seekers do not have a lawyer. Without a lawyer to help focus their
client's testimony, all asylum seekers, including Zimbabweans targeted by Operation Murambatsvina wishing to claim
asylum, are fully reliant on well-trained RSDOs who should ask the correct
questions to understand whether or not the asylum seeker can qualify for
refugee status. RSDOs also
need complete, accurate, and up-to-date information on the conditions in the
asylum seeker's country to help them assess whether the individual's statements
fit with the political, social, and economic conditions in the claimant's
country of origin. UNHCR confirmed that in November 2007 RSDOs still had no
systematic access to reliable country information.[247]

The quality
of RSDO decisions is poor. Applicants are often interviewed with badly trained or
no interpreters present. Many decisions are taken hastily with written reasons
for rejection of the claim using irrelevant, arbitrary, and pro-forma language
or reasoning with no basis in law. There continue to be reports of third
parties taking money in the queues outside the offices and paying bribes to
RSDOs to accept claims.[248]

The Chair
of the Refugee Appeals Board confirmed that the quality of RSDO decisions is
very low with most RSDOs having at most a law degree and a two-week crash
course in refugee law.[249]
UNHCR confirmed that RSDOs do not receive regular training, which contributes
to questionable decision-making, and that the very few RSDOs with good skills
rapidly move on to other jobs.[250]

Human
Rights Watch randomly reviewed four RSDO decisions from 2007 and confirmed that
they were of extremely low quality with almost no use of law.[251]
RSDOs are presently unable to deal with even the most straightforward of cases
involving, for example, claims of torture or other forms of ill-treatment
motivated by political reasons such as membership of opposition parties. Even
more challenging are cases involving more complex claims, such as those that
can be made by Zimbabweans targeted by Operation
Murambatsvina. In the absence of lawyers and competent and well-supported
RSDOs, claims such as those relating to Murambatsvina will almost certainly be
rejected.[252]

The South
African asylum system has a functioning appeals system.[253]
However, for two reasons few asylum applicants with rejected cases are able to
meaningfully access the system or to access it at all.

First, few
applicants are able to find a lawyer to help them with an appeal.[254]
This is because there is no functioning government-funded legal aid system in
place for asylum applications and there are only a limited number of asylum law
practitioners who provide free or low-cost legal aid services.[255]
This will either dissuade asylum seekers from lodging an appeal or, if they do
appeal, will lead to them representing their own case. Not being lawyers, such
appeals will inevitably be extremely weak.[256]

Second, a
combination of the high number of rejected claims combined with the low
capacity of the Refugee Appeals Board means that cases take a long time to be
heard, leaving the asylum applicant in a situation of long-term legal
insecurity.[257]
This again deters people from lodging an appeal.

The
combination of low-quality decision-making leading to mistaken rejection of
claims and the barriers to lodging an appeal mean that there is a considerable
risk that Zimbabweans with valid asylum claims end up rejected and deported to Zimbabwe,
thus constituting refoulement.

Clearing the Backlog and Coping with New Applications: the
Asylum System under Continuous Stress

The ongoing dysfunction of South Africa's asylum system is
exacerbated by the increasing number of cases the system is struggling to
process. With the recent influx of Zimbabweans entering South Africa and a parallel
increase in Zimbabwean asylum applications, the system has been even more
strained. Until the asylum system is able to find a way of dealing more
efficiently with its caseload, the obstacles faced by Zimbabwean asylum seekers
and the related risk of refoulement will
continue.

In March 2006 the DHA announced the creation of a second
"Backlog Project" designed to clear 111,153 cases that had accumulated in the
asylum system before August 1, 2005.[259] The
project has been running separately from the main asylum system which has
continued to receive new applications lodged on or after August 1, 2005.

In September 2007 the DHA announced that 76,400 pre-August
1, 2005 cases remained to be dealt under the Second Backlog Project.[260]
Human Rights Watch obtained statistics showing that the Second Backlog Project
adjudicated 43,116 cases between September 1, 2005, and March 31, 2008. Since
then the DHA has made no further formal statement on progress made in reducing
this backlog.[261]
However, on April 16, 2008, the South African delegation at the UN's Human
Rights Council's review of South Africa's human rights record stated that, "[t]he
backlog has been reduced to 8,000 at present."[262]
And on May 29, 2008, the minister of home affairs informed a legal aid NGO that
all applications dealt with under the Second Backlog Project "have been dealt
with except for the appeals against decisions of the Refugee Status
Determination Officers."[263]

The challenge of new asylum applications and a new
backlog

In addition to the challenges faced by the asylum system in
clearing the pre-August 1, 2005 cases in the Second Backlog Project, the rest
of South Africa's
asylum system is struggling to cope with the number of asylum applications
lodged on or after August 1, 2005. This has been openly acknowledged by the
DHA's Director-General.[264]

Between August 1, 2005, and December 31, 2005, approximately
19,715 new asylum applications were lodged. Of these, 1,960 were dealt with at
the initial (RSDO) stage, leaving 17,775 cases pending at year's end.[265]
Between January 1, 2006, and December 31, 2006, 53,361 new asylum applications
were lodged with 5,432 initial decisions made during the same period.[266]
There were 45,673 new asylum applications in 2007. That year, 5,879 cases were
processed at the initial stage.[267]

This means that between August 1, 2005, and December 31,
2007, 118,749 new asylum applications were lodged and 13,271 initial decisions
taken, leaving a total of 105,478 asylum cases that were lodged on or after 1
August 2005 pending at the end of 2007.

The number of Zimbabweans claiming asylum

A total of 44,423 Zimbabweans claimed asylum in South Africa
between 2005 and 2007 (In 2004, 2005, and 2006, 241 Zimbabweans were recognized
to be refugees).[268]
Zimbabweans comprised one-third of all applications in 2006 and 2007.[269]

Interviews conducted by Human Rights Watch revealed that
many Zimbabweans claim asylum as the only way to regularize their stay and work
legally in South Africa.[270]
If the South African authorities were to adopt Human Rights Watch's proposal in
Chapter IX of this report to introduce a "temporary immigration exemption
status for Zimbabweans," many of these claims would no longer be made, thus
freeing up capacity within the asylum system. This would enable Zimbabweans
targeted by Operation Murambatsvina
to make their claims for asylum. The number of such claims might be high, but
many such claimants might choose not to lodge asylum claims if the South
African authorities provided them with a form of temporary status.

Effect of numbers on the asylum system

The pressure created by the numbers affects the entire asylum
system. It affects procedural matters such as asylum seeker permits and access
to the five offices. It also affects the speed and quality with which the small
number of RROs and RSDOs process claims. Consequently, many Zimbabwean asylum
seekers are currently at risk of refoulement.

The DHA's "Turnaround Strategy" and Improving the Asylum System

In 2004 the DHA launched a "Turnaround Strategy" designed to
improve service delivery in all of the DHA's departments, including the National
Immigration Branch's five directorates. One of these is the Refugee Affairs
Directorate.[271]

In November 2005 the Pretoria High Court ordered the DHA to commission
an independent review of the asylum system and to report back to the Court on
its progress in implementing any recommendations made by the review. A draft report
was issued in February 2007 and recommended far-reaching reforms in all areas
including staffing, information technology capacity, infrastructure, and
processes.[272]
Most notably it recommended that the DHA recruit an additional 180 Refugee
Status Determination Officers and 24 Refugee Reception Officers to ensure that
the government complies with its national and international legal obligations.

In
September 2007 the company leading the Turnaround Strategy reported that the
DHA Minister had accepted the recommendations made and set out a broad plan for
implementing them.[273]
The report noted that as of September 2007 extremely little progress had been
made.[274]
According to the most recent public update by the DHA, minor improvements have
been made to the asylum system.[275]
A number of RSDOs have been recruited, though they have yet to be trained,[276] and 17 new senior
staff appointments have been made.[277]
Unless the strategy makes significant and unexpectedly rapid progress in the
second half of 2008, the asylum system will continue to expose Zimbabwean
asylum seekers to a high risk of being subjected to refoulement.

Deportation Practice Leading to Generalized Risk of Refoulement

The law relating to detention and deportation of
suspected "illegal foreigners"

Under South African law, immigration officials have the
right to arrest, detain, and deport "illegal foreigners."[278]
People are "illegal foreigners" if they are "in contravention" of the 2002
Immigration Act.[279]
Foreign nationals "contravene" the act if they do not have a valid permit to be
in South Africa.[280]

A person who has expressed a wish to apply for asylum or who
has already applied for asylum cannot be an "illegal foreigner." The law
guarantees all individuals expressing a wish to apply for asylum the right to
be given time to gain access to one of the five Refugee Reception Offices.[281]
The law also explicitly protects those who have already applied for asylum: "[N]o
proceedings may be instituted or continued against any person in respect of his
or her unlawful entry into or presence within the Republic if… suchperson has applied for
asylum… until a decision has been made on the application."[282]

Immigration officials and police officers are authorized to
require anyone in South
Africa to identify himself as a citizen,
permanent resident, or non-national. If they have "reasonable grounds" to
conclude that the person is not entitled to be in South Africa, they "may take [the]
person into custody without a warrant and if necessary may detain him… until…. [his]
status… is ascertained."[283]

Because asylum seekers cannot lawfully be deported, they
must be released immediately if the questioning establishes that they are
asylum seekers.

If the immigration officials decide that the person is an
"illegal foreigner" they must arrest the person and may detain her pending
deportation.[284]
While awaiting deportation South African law provides that detainees have a
number of rights, including the right to receive a written decision confirming
the planned deportation, the right to appeal against the decision, the right to
ask for a court to confirm the validity of the decision, and the right to be
informed of these rights.[285]
If after 30 days the person is still in detention only a court can authorize a
further period of detention, which cannot exceed 60 days (i.e. a maximum total
of 90 days).[286]
There are clear minimum standards that regulate the living conditions of
"illegal foreigners" detained pending deportation.[287]

In 2005 Human Rights Watch reported on a number of violations
of the law. These included unlawful detention of asylum seekers by police
officers beyond the maximum 48-hour period, often caused by a failure of communication
between police officers and immigration officials who failed to establish the
asylum seekers' status; unnecessary detention of asylum seekers at Lindela
caused by police having no option but to take suspected "illegal foreigners" to
Lindela in the absence of cooperation from immigration officials;[288]
unlawful detention of asylum seekers beyond the 30 day limit; and instances,
confirmed by UNHCR, of refoulement of
asylum seekers and refugees from Lindela.[289]

In 2006 and 2007 the situation did not improve, with
numerous legal-aid service providers reporting the following:

·refugees and asylum seekers being held in
detention facilities for having expired permits which they had tried,
unsuccessfully, to renew;

·despite being in possession of valid documents,
asylum-seekers being unlawfully
arrested and detained;

·asylum
seekers with "appointment slips" (now replaced by "verbal appointments") being
detained because police and immigration officials did not recognize such
slips as validdocuments;

·detainees being asked to pay bribes in order to
secure their release;

·detainees
not being adequately informed of their basic procedural basic rights;[290] and

·suspected
"illegal foreigners" being unnecessarily transferred because of ineffective
verification procedures due to the absence of a comprehensive electronic
database recording the name and personal details of people who have claimed
asylum in South Africa.[291]

In addition to the regularly documented breach of minimum
living standards at Lindela,[292]the UN Human Rights Council
received a report from the UN in April 2008 setting out numerous consistent
allegations of ongoing rights violations taking place at Lindela, including refoulement. These include "allegations
of ill-treatment, including extortion of documented and undocumented
non-citizens by law enforcement officials."[293] The
UN report noted that in 2006 the UN Working Group on Arbitrary Detention concluded that:

Many foreigners were deprived of their liberty: some with
legal residence papers, some seeking asylum and claiming they had been
arbitrarily arrested by police officers, ill-treated, not able to contest the
validity of their detention and that they could subsequently be expelled from
the country with no form of review or recourse... It was also concerned with
the numerous cases of police arresting legally established foreigners, throwing
out their residence papers and putting them in custody or even handing them to
immigration authorities for forced deportation.[294]

The UN Working Group's reference to police officers
"throwing out" residence papers is echoed in a 2006 survey which reported that
of 59 interviewees, 65 percent said that having showed their asylum seeker
permits to police who had stopped them, they were told to pay a bribe to ensure
that their papers would not be torn up.[295]

Most serious of all
are reports that in 2007 many Zimbabweans in the immediate border areas were
being taken to a detention facility in Musina, on the South Africa-Zimbabwe
border. The facility is located on a military base previously used by the South
African National Defense Forces (SANDF), and is being run by the South African
Police Services (SAPS).[296] Most Zimbabweans were deported within hours
or days by the police without immigration officials verifying their legal
status and without being informed of their rights to appeal the decision to
deport them,[297] a
clear breach of the Immigration and Refugee Acts.[298] These practices have reportedly continued in
2008.[299]
Numerous civil society organizations have been refused access to the detention
facility.[300] UNHCR has also repeatedly been refused
access.[301]

The lawyers reporting on these violations hear about them
through their regular contact with detained clients. When they are able to
identify individuals who wish to claim asylum and, therefore, have been
unlawfully arrested and detained, they have usually been able to secure their
release relatively easily. However, given the small number of legal service
providers, the large number of detainees, and the insufficient access to
detention facilities to monitor detention and deportation practice, there is
serious concern that the vast majority of people who are unlawfully detained
are not detected and, therefore, end up being unlawfully deported.[302]
In the case of refugees and asylum seekers, such deportation constitutes refoulement.

Likely Number of Zimbabwean Deportees in 2007

The number of Zimbabweans deported from South Africa in 2006 and 2007 is
high. There are no official statistics available and even official statistics
do not reflect the true picture, given the amount of rapid informal deportation
that takes place between South Africa
(Musina) and Zimbabwe
(Beitbridge).[303]

Human Rights Watch has informally obtained DHA statistics
for the calendar year 2006 which state that of the 165,270 deportations
officially carried out by the South African authorities, a little less than
half, 81,289, were of Zimbabweans.

Other statistics indicate that in 2007 this number doubled.
Between June 1, 2006, and May 31, 2007, the International Organization for
Migration (IOM) office in Beitbridge,
Zimbabwe,
registered 163,240 Zimbabwean deportees.[304]
Between 1 January and 3o June 2007, the IOM registered 102,413 deportees.[305]
The South African Police's Communications Officer in Musina told the Red Cross
that between March and July 2007 the number of deportees had tripled (from
6,500 a month in the months before March 2007) to 18,000 a month.[306]
Over 12 months this would lead to a total of 216,000 deportations. The 18,000
figure matches almost exactly the figures made public by the IOM Beitbridge
office in Zimbabwe
across the border from Musina, which stated in July 2007 that it had been
receiving 17,000 deportees a month.[307]

In October-November 2007 many Zimbabweans told Human Rights
Watch that they had been deported more than once in the past year. Such
deportees are counted at least twice in the statistics.[308]

IX. Adopting a
Broad-Based Approach to Zimbabweans in South Africa: Allowing Entry, Regularizing
Status, Ending Deportations and Granting the Right to Work

Overview of
Need and Reasons for Broad-Based Approach

The
estimated one million Zimbabweans in South Africa cannot be described as
voluntary economic migrants. As the testimonies presented in this report
document, Zimbabweans are coming to South Africa out of desperation and
as a last option to cope with the crisis in their country. Their movement can
and should be described as involuntary. Official recognition by governments and
international actors of the involuntary nature of Zimbabwean's displacement into
South Africa (and other
neighbors) is a necessary step to determine the most effective response to
their presence in South
Africa.[309]

Presently
Zimbabweans have limited opportunity to lawfully enter and stay in South Africa.
Some manage to obtain visitors' permits, a small number obtain one of four
types of work-related permits and some claim asylum. However, the vast
majority, in the hundreds of thousands, continue to enter South Africa irregularly and have
no legal status.

The South
African authorities should adopt a broad-based approach to Zimbabweans'
presence in South Africa.
This should allow Zimbabweans to enter South
Africa, temporarily regularize the status of all
Zimbabweans present in South Africa
for a reviewable period of time, provide for an end to deportations of
Zimbabweans, and provide all Zimbabweans in South Africa with the right to work
during that period.

There are
at least eight reasons for such an approach.

First, regularization wouldrespect South Africa's legal obligations.
Many Zimbabwean asylum seekers in South Africa do not get the
protection to which they are entitled under South African and international
refugee law. There is no short term prospect of substantial improvements in the
asylum and deportation systems. Consequently, Zimbabwean asylum seekers will
continue to face the risk of being subjected to refoulement. These include those seeking asylum as a result of the
government's campaign of political violence and repression against opposition
supporters following the March 2008 elections and people targeted byOperation Murambatsvina, if they claim
asylum in the future. Because the current asylum and deportation systems
currently fail to adequately identify and protect many Zimbabwean asylum
seekers, the only way to end their unlawful deportation and to ensure South Africa
respects its obligations under international law is to end deportation of all
Zimbabweans.

Second, regularization wouldunburden the asylum system of unnecessary
claims. South
Africa's dysfunctional asylum system is
overburdened by tens of thousands of claims made by Zimbabweans who are
desperate to work. Although many, including those targeted by the 2005
evictions, may have valid asylum claims, others may use the asylum system as
the only way to regularize their legal status and to have the right to work in South Africa.
Regularizing Zimbabweans' status and giving them the right to work would help
reduce the number of unnecessary claims in the asylum system and would thereby
help the government to guarantee protection for those with valid claims.

Third, regularization wouldprotect Zimbabweans during entry and stay in South Africa, including
against xenophobic violence at the hands of South African citizens. In 2007 there were increasing
reports of Zimbabweans falling victims to serious criminal offences during
informal border crossings at the hands of violent Zimbabwean people smugglers
known as maguma guma, including many
instances of rape.[310]
Once inside South Africa,
Zimbabweans' undocumented status exposes them to violence at the hands
of South African citizens who almost certainly believe that their vulnerable
victims won't report them to the police. As noted above, the wave of violence
against Zimbabwean and other foreign nationals that swept South Africa in May
2008 and which left at least 62 people dead, 670 injured, and over 100,000
displaced,[311]
follows in the wake of many isolated incidents of similar violence that have
taken place throughout 2007 and early 2008.[312]
Zimbabwean's undocumented status also exposes them to exploitation by employers
and to harassment by the South African police.[313]
In summary, helping Zimbabweans enter through formal border crossings would
attenuate predatory practices at the border. Ensuring that Zimbabweans were
documented and could work would significantly reduce their vulnerability to xenophobic
violence at the hands of criminals, to exploitation by employers, and to
corrupt police practices.

Fourth, regularization wouldoffset the cost to the South African
taxpayerof ineffective deportation
and wasteful use of police resources. The South African authorities have
openly recognized that deporting Zimbabweans "doesn't work,"[314]
and that the presence of Zimbabweans in South Africa is "something [South
Africans] have to live with."[315]
The vast majority of undocumented Zimbabweans are not identified or deported
and those who are-up to 200,000 a year or more-return to South Africa within days or weeks.[316]
In the absence of building "a Great Wall of China between South Africa and Zimbabwe
to stop people walking across,"[317]South Africa
will continue to fruitlessly spend huge sums of money and large amounts of
police resources on deporting Zimbabweans.

Fifth, regularization would provide data on
hundreds of thousands of undocumented Zimbabweans. Because the vast
majority of Zimbabweans enter the country without a visa, the South African
authorities have no data on them, including data on identity and places of
residence and work. Facilitating documented entry would be in the government's
interest: it would know how many people were in the country, who they are, and
where they live and work. In the event of problems that may arise or upon
expiration of their temporary status, the government would be able to identify
people it registers under the proposed scheme.

Sixth, regularization wouldplug the gaps in the skilled labor marketand ensure a level playing field for
South African workers in the unskilled labor market. Regularizing their
entry and stay in South Africa would help the authorities more easily identify
Zimbabweans who can plug the well-documented gaps in both the skilled and
unskilled South African labor market. The skilled labor market includes
shortages of teachers and nurses.[318]The unskilled sector has a constant
need for farm laborers and construction-site workers. Zimbabweans, many of whom
work for less than the minimum wage in these two sectors, are often accused in
the media of taking away jobs from South African workers. Some are undocumented
and fall victim to farmers wanting to hire cheap labor with which South African
nationals cannot compete.[319]
Regularizing their stay would help the authorities to enforce employers'
minimum-wage obligations and create a level playing field on which South
African nationals would not be disadvantaged when competing for jobs.

Seventh, regularization leading to the right to work
would address Zimbabweans' humanitarian needs in South Africa that would reduce the
pressure on South African social assistance programs.Because of their undocumented status, Zimbabweans in South Africa
are often unable to find or keep jobs, increasing their own humanitarian needs.
Granting Zimbabweans the right to work in South
Africa would help them fend for themselves, which would in
turn reduce the number of desperate Zimbabweans seeking help from South Africa's
social assistance programs.

Finally, regularization
leading to the right to work would help Zimbabweans support desperate families
remaining in Zimbabwe,
thereby possibly reducing the number of Zimbabweans fleeing their country for South Africa. Human Rights Watch's research shows that most Zimbabweans are not
coming to South Africa
because they want to immigrate permanently but because it is the only way for
them to help themselves and their families survive in Zimbabwe. The right to work would
enable Zimbabweans to send desperately needed basic foodstuffs to their
families in Zimbabwe.
This, in turn, would possibly reduce the number of Zimbabweans, especially the
most vulnerable-children,
the elderly, PLWHA-coming
to South Africa.

Current Options
Available to Zimbabweans for Regularizing their Status in South Africa

Aside from claiming asylum which leads to an asylum seeker's permit,
Zimbabweans' only other option to lawfully enter and remain in South Africa is to obtain a temporary residence permit.

Sections
11-24 of the 2002 Immigration Act set out the different types of temporary
residence permits.[320]
The permits most likely to be held by unskilled or semi-skilled Zimbabweans
are: visitors permit (s. 11) or permits granted to them under the corporate
permit system (s. 21). Zimbabweans with specific skills who are able to fulfil
the formal requirements can apply for quota work permits or general work
permits (s. 19). The relatively limited number of Zimbabweans regularly trading
in the border areas can apply for cross-border permits (s.24).

According
to the 2002 Immigration Act and its regulations, foreign nationals must present
a passport in order to obtain any of these permits. Many Zimbabweans do not
have a passport. Since December 2006 the number without a passport has
increased because the Zimbabwean authorities ran out of funds for importing the
specific paper required to produce them.[321] In
2007 the Zimbabwean authorities began to issue emergency travel documents
(ETDs) in place of passports. There has been no official decision by the DHA to
recognize an ETD as a valid alternative to a Zimbabwean passport. However,
anecdotal information obtained by Human Rights Watch suggests that in some
cases immigration authorities do accept ETDs.[322]

In practice
few Zimbabweans can enter under the temporary residence permit system.[323] Most enter South Africa through informal border crossings
or bribe immigration officials at the border; they enter without a permit and
remain undocumented in South
Africa.

Adopting a
Broad-Based Approach

The South
African government has a stark choice. It can either continue to try to ignore
the reality of hundreds of thousands of undocumented Zimbabweans on its
territory, allowing many to be mistreated by police, abused and exploited by
employers, and hundreds of thousands to be removed haphazardly, arbitrarily,
expensively and ineffectively, or it can choose to regularize their stay.

Given the large number of Zimbabweans believed to be in South Africa,
the similar needs faced by all of them, and the operational challenges involved
in any response, Human Rights Watch believes that the government should adopt
the simplest, fairest, and most expedient possible approach.[324]

There are
three available options based on South African law if the government wants to
adopt such an approach.

The first
option would be for the government to use the 1998 Refugees Act to make an
official one-off declaration that all Zimbabweans coming to South Africa are refugees. The 1998
Refugees Act adopted verbatim the refugee definition from the 1969 OAU
Convention, which includes "every
person who, owing to… events seriously
disturbing public orderin either part or the whole of his country of
origin…is compelled to leave" (emphasis added).[325]The Act also authorizes the minister of home affairs to declare that a
given "group of persons" qualifies for refugee status.[326]
The government could, therefore, find that political and economic conditions in
Zimbabwe
constitute "an event seriously disturbing public order," and declare
Zimbabweans as a group to be refugees.[327]

Although a blanket
refugee declaration would be straight forward, within existing South African
law, and easily verifiable, the government would likely find the political ramifications of such a
declaration daunting.[328]
It should be noted, however, that a senior South African official has publicly
referred to Zimbabweans in South
Africa as "refugees."[329] It
should further be noted with respect to the possible political implications of
such a declaration that the OAU Convention states, "The grant of asylum to
refugees is a peaceful and humanitarian act and shall not be regarded as an
unfriendly act by any Member state."[330]

A second
option would be for the government to use its membership of SADC (Southern
African Development Community) to facilitate Zimbabweans' entry into South Africa.
SADC's Protocol on the
Facilitation of Movement of Persons aims, among other things, to
establish harmonized entry
requirements including a visa-free right of entry for 90 days per year.[331]South Africa has already
taken steps toward this, allowing nationals from eight SADC countries to enter South Africa
on 30-day free visas.[332]
It has extended the full 90-day free visa option to Botswana nationals.[333]South Africa could make a
similar arrangement with Zimbabwe,
whether for 30, 60, or 90 days. However, such visa-free entry would not give
Zimbabweans the right to work, which is the most important part of any solution
to be adopted.

Although
the SADC protocol does aim to establish a harmonized approach that enables all
SADC nationals to work in any SADC country,[334] as
SADC's richest country South Africa is reluctant to take steps without other
key countries such as Botswana, SADC's second richest country, doing the same.
Adopting this part of the protocol would, therefore, require prolonged
SADC-wide negotiations. Although the process could be accelerated, it is not a
short-term option with regard to Zimbabweans in South Africa.

The third
option would be for the government to use discretionary powers under
immigration law to grant Zimbabweans in South Africa a temporary
immigration status, for a limited period of time, and under specific terms and
conditions.

Although
Human Rights Watch prefers the first option, because the political and economic
crisis in Zimbabwe can indeed be accurately described as "events seriously
affecting public order" that are producing refugees, the political obstacles
for that option and the limitations (in terms of work authorization and
timeliness) of the second option, lead us to urge the South African government
to adopt the third option as the most pragmatic and expedient way to provide
broad-based protection temporarily for Zimbabweans in South Africa.

Exercising
Discretion to Adopt a Broad-Based Approach: a New "Temporary Immigration
Exemption Status for Zimbabweans"

Basis
in law and overview of a new temporary permit scheme for Zimbabweans

Under
section 31(2)(b) of the 2002 Immigration Act, the minister of home affairs has discretionary power to exempt certain
people from standard immigration procedures and "may under terms and
conditions determined by him or her… grant a foreigner or a category of foreigners the rights of
permanent residence for a specified or unspecified period when special
circumstances exist which justify such a decision."[335]

Under this provision, the minister could establish a new
temporary permit scheme called "temporary immigration exemption status (TIES) for
Zimbabweans."[336]

The new TIES permit would identify "all Zimbabweans
currently in South Africa or
in Zimbabwe"
as a "category of foreigners." The "special circumstances" justifying the
decision to use the exemption would be both the current post-election political
crisis and economic situation in Zimbabwe
and the need to temporarily regularize the undocumented status of the large
numbers of Zimbabweans already present in South Africa. All Zimbabweans,
whether already asylum seekers or in South Africa under a visitor's or
work permit, would have the right to apply for the new temporary permit.

TIES would obviate the need for most Zimbabweans to apply
for asylum. Based on Human Rights Watch interviews with Zimbabweans in South Africa,
eligibility for temporary status that grants the right to work is likely to
meet many of the needs of most Zimbabweans. The authorities could exercise
their discretion to prevent a person from concurrently holding both TIES and
the status of asylum seeker. Nonetheless, this would be on the understanding
that a failed asylum applicant would still be eligible for TIES or that a TIES
permit holder would be permitted to seek asylum upon the expiration of TIES if
she had an individualized fear of persecution.

The minister would set out procedures for facilitated
(visa-free) entry into South Africa
as well as for procedures to register Zimbabweans already in South Africa for TIES.

Section 31(2)(b) states that in granting an exemption the
minister grants the "rights of permanent residence." These are extensive[337]
and include the economic and social rights to housing assistance and to non-health-related
social services such as food and social security.[338]
The minister could choose to exclude these latter rights on the grounds
that it would be impossible for the South African government to extend these
rights to up to one million people. She could, therefore, limit the rights
granted under the new status to the right to work and to the rights that
everyone present in South Africa
has under South Africa's
Bill of Rights regardless of their legal status.[339]
The minister could justify not granting full permanent residence rights under
the words "may under terms and conditions determined by her" in section
31(2)(b). In contrast, under South African law individuals recognized as
refugees and granted asylum would enjoy the full range of rights in the Bill of
Rights and would be entitled to apply for permanent residency status after five
years.

Finally, the minister would make clear that as long as she
has "good cause" provided under section 32(1)(b),[340]
she may at any time revoke the exemption that she has granted under section
31(2)(b). When TIES is withdrawn, the minister would have to justify her
decision in writing with reference to the country conditions in Zimbabwe.

Details
of a possible temporary immigration exemption status for Zimbabweans

Entry into South Africa
and considerations for Zimbabweans already in South Africa

On arrival at the border,[341]
Zimbabweans would have to prove their nationality by producing an identity
document of some kind, whether an emergency travel document (issued in place of
passports since December 2006) or some other kind of formal identity papers. They
could be issued with a special temporary transit permit and would be told where
to register in-country as a Zimbabwean in South Africa.

Zimbabweans already in South Africa would go directly to
the registration centers. Zimbabweans in South
Africa without identity papers proving their Zimbabwean
nationality would have the option of proving their nationality in some other
way, for example by answering a range of variable questions on Zimbabwe.[342]

Registration

Under the new TIES scheme, the DHA would set up special
registration procedures in its offices in the country's main urban centers.
Ideally these would involve computerized recording of each TIES applicant's
registration. Upon registration each applicant would receive a TIES permit,
preferably laminated to protect it from wear and tear, which would clearly
state that the permit holder benefits from the "temporary immigration exemption
status for Zimbabweans."[343]
The permit would make clear that the TIES permit holder is legally present in South Africa,
cannot be deported, and has the right to work.

Ending deportations of Zimbabweans

Given the current risk of refoulement that exists for Zimbabwean asylum seekers in South Africa,
ending deportations of Zimbabweans is one of the most important priorities for
the South African government. In setting up the TIES scheme, the authorities
should announce an end to deportations of all TIES-registered Zimbabweans in South Africa.
Zimbabweans who become "prohibited persons" or "undesirable persons" could be
deported,[344]
unless the person is an asylum seeker or refugee, in which case the risk of
persecution or a real risk of being returned to torture or cruel, inhuman, or
degrading treatment must be taken into account as a barrier to deportation.[345]

The right to work

The centerpiece
of TIES would be the right to work. The TIES permit would clearly indicate that
the bearer is authorized to work. This would address Zimbabweans' most urgent
need to make enough money to support themselves and their families in Zimbabwe.

The South
African authorities would almost certainly face criticism from various sides
for granting the right to work on the grounds that this would take away jobs
from South Africa's
47.9 million residents[346]
who are already facing an unemployment rate of 23 percent.[347]

A
government information campaign could inform South Africans that hundreds of
thousands of Zimbabweans are already working without work permits in South Africa,
and that officially granting them the right to work would help to regulate
their access to the job market and help control wages, guaranteeing equal
access to the job market for South Africans. It could also make clear that
South Africa could use skilled Zimbabweans to fill its well-documented skills
shortages, and that unskilled Zimbabweans working in the informal sector
(domestic work, cleaning, street trading, small businesses such as internet
cafes etc.) are not a threat to South African jobs, given that these jobs are
overwhelmingly new jobs in an ever-expandable market.

X. Acknowledgments

This report was researched and written by Gerry Simpson, refugee researcher and advocate at
Human Rights Watch, with the assistance of Joe Amon, director of the Health and
Human Rights program at Human Rights Watch. The report was edited by Bill Frelick, director of the Refugee Program. It
was reviewed by Carolyn Norris, acting
deputy director of the Africa division, Aisling
Reidy, senior legal advisor, and Andrew Mawson,
deputy Program director. Additional editorial assistance was provided by Jonathan Cohen of the Refugee Program. Grace Choi,
Anna Lopriore, and Fitzroy Hepkins provided production and photo assistance. We
would also like to extend particular thanks to Bidish Sarma and Emily Tendayi
Achiume from The Lowenstein Clinic at YaleLawSchool, who provided exceptional
research support for this report, and to their supervisors James Silk and
Elizabeth Brundige.

Human Rights Watch is grateful to all the Zimbabweans who
agreed to be interviewed for this report. We particularly thank Abeda Bhamjee,
Jess Auerbach, Alison Coady, Tobias Hlambelo, Shannon Moreira, Anna Moyo,
Melanie Smuts, and Mesele Yuba, who helped Human Rights Watch conduct
interviews with Zimbabweans in South Africa.

In addition we would like to thank all interviewees from
South African civil society who gave generously of their time, in particular Tara Polzer from the Forced Migration Studies
Program, Florencia Belvedere from Lawyers for Human Rights, Duncan Breen from
the Consortium for Refugees and Migrants, Abeda Bhamjee (independent
consultant), and William Kerfoot from the Legal Resources Centre. We would also
like to thank Christina Henda from the Cape Town Refugee Centre, and Miranda
Madikane and Sylvanus Dixon from the Cape Town Scalibrini Centre for Refugees,
for assisting Human Rights Watch with interviews near Cape Town.

Finally, we would like to thank Dr. Michelle Foster, Senior Lecturer, Melbourne Law School,
and author of "International Refugee Law and Socio-Economic Rights: Refuge from
Economic Deprivation," whose writing greatly contributed to the decision to
research this report.

[1] Based on a
compilation of official statistics, a December 2006
report prepared for the International Organization for Migration (IOM)
concludes that 395,000 Zimbabweans are likely to be in the United Kingdom. IOM, "Mapping Exercise, Zimbabwe,"
December 2006,

[2]Estimates for Botswana,
Zimbabwe's second richest neighbour
after South Africa,
are between 200,000 and 300,000. Stephanie Hanson, "Botswana: An African Success Story
shows Strains," US Council of Foreign
Relations, January 10, 2008, http://www.cfr.org/publication/15108/(accessed
March 2, 2008).

[3]Mozambique and Zambia
have both reportedly seen an increase in Zimbabweans crossing their borders but
there are very few estimates available.

[4]South Africa's
Department of Home Affairs (DHA) does not break down its annual deportation
statistics by nationality. Between April 1, 2006, and March 31, 2007, South Africa
deported 266,067 people. DHA, Annual Report, 2006-2007, http://home-affairs.pwv.gov.za/documents/Annual_Report_2006-2007.pdf
(accessed March 4, 2008). Human Rights Watch has obtained unpublished DHA
deportation statistics for the 2006 calendar year which state that Zimbabweans
made up a little less than half (81,289) of the 165,270 deportations for that
year. On file with Human Rights Watch. Other statistics in later sections of
this report suggest that by March 2007 Zimbabweans were being deported at a
rate of 18,000 per month (an annual rate of 212,000). Deportation statistics
only have limited value in estimating the number of Zimbabweans in South Africa
because they do not say anything about how many undocumented Zimbabweans are
not identified and deported by the police and they include people who are
deported more than once, counting each deportation as a new deportation.

[6] There are no
reliable statistics on the number of Zimbabweans in South Africa. The South African
government has made no statement. Studies by research institutions are
geographically limited or target only specific groups. The most systematic
study has calculated 800,000 – one million. Daniel Makina, "Survey of Profile of Migrant Zimbabweans in South Africa: a Pilot Study," University of South Africa, September 2007, www.idasa.org.za/gbOutputFiles.asp?WriteContent=Y&RID=1994
(accessed March 4, 2008). Some media reports
have placed the figure as high as 3.5 million. The 2002 Zimbabwe census recorded 11.6 million
people of whom 6 million were children. Unpublished information obtained by
Human Rights Watch from the private think tank Robertson Economic Information
Services (http://www.economic.co.zw/) concluding that
around 2.7 million Zimbabweans from the 2002 census were economically active in
2002 (900,000 in regular employment, 700,000 in the informal sector, and
1,100,000 small-scale farmers) with a further 1,950,000 unemployed but
potentially economically active, making a total pool of 4,650,000 working-age
adults. (The remaining 1,450,000 were split between 450,000 adults too old to
work and one million women bringing up children). Given that at least 500,000
mostly economically active Zimbabweans are in the UK
and Botswana, that tens of
thousands more are in other countries, and that at the very least 1.5 million
actually or potentially economically active adults remain in Zimbabwe, the
total number of Zimbabweans in South Africa is likely to be far less than 3.5
million. On the basis of this consideration and lower civil society figures,
Human Rights Watch adopts the figure of one - 1.5 million.

[8] There is no data
on Zimbabwean's average length of stay in South Africa. Some come for hours
(cross-border shopping), some come for days (short-term jobs in the border
areas), some stay for several months (to earn income on farms or in urban
areas), and others stay for years (work and asylum). Human Rights Watch
interviews with Zimbabweans in Cape Town, Johannesburg, and Pretoria,
October-November 2007. As the situation in Zimbabwe
deteriorates the length of period Zimbabweans stay in South Africa to
work will inevitably increase.

[9]Human Rights Watch interviewed almost 100 Zimbabweans
in and around Cape Town, Johannesburg,
and Pretoria in October and November 2007 who
came from all parts of Zimbabwe
with the majority coming from or near Harare.

[10]Human Rights Watch interviews, Cape
Town, Johannesburg and Pretoria, October -November
2007. The violence against foreigners in South Africa in May 2008 reportedly
led to thousands of foreign nationals, including Zimbabweans, returning to their
home countries. Available statistics at the end of May 2008 suggested that the
vast majority (around 30,000) were Mozambicans, whilst according to the IOM
working on the South African-Zimbabwe border, only a small number of
Zimbabweans – 123 – returned to Zimbabwe
after the violence.International Federation of Red Cross And Red
Crescent Societies, "South
Africa: Urban disturbance DREF Operation No.
MDRZA002 Update No. 1," 30 May 2008, http://www.reliefweb.int/rw/rwb.nsf/db900sid/EDIS-7F5QKC?OpenDocument&rc=1&cc=zaf(accessed June 1, 2008).

[11] The
ineffectiveness of South
Africa's deportation practice is looked at in detail in Chapter VII.

[12] On the
assistance needs of Zimbabweans in South Africa, see below pp. 34-37.

[14] Written
submission by civil society organizations working on the refugee and asylum
seekers' human rights issue in South Africa for presentation to the minister of
Home Affairs, "The Documented Experiences of Refugees, Deportees and Asylum
Seekers in South Africa: A Zimbabwean Case Study,"April 2006, p. 7. Not available online. On
file with Human Rights Watch.

[16] SADC,
"Communiqué from the 2007 Extra-Ordinary Summit of Heads of State and
Government held in Dar es Salaam, United Republic of Tanzania 28th
to 29th March 2007," http://www.dfa.gov.za/docs/2007/sadc0330.htm
(accessed June 6, 2008). For recommendations made by Human Rights Watch to
SADC's annual summit in August 2007, see A
Call to Action: The Crisis in Zimbabwe,
SADC's Human Rights Credibility on the Line, August 2007,
http://hrw.org/backgrounder/africa/zimbabwe0807/.

[17] In a joint press
conference in Johannesburg, South Africa, on February 21, 2008, the
secretaries general of the MDC's two factions, Tendai Biti and Welshman Ncube,
announced that the Zimbabwe
government had reneged on agreements to implement a new constitution and make
legislative reforms before elections were held. "Mbeki's Zimbabwe mediation has failed," IOL (South Africa),
February 22, 2008, http://www.iol.co.za/index.php?from=rss_South%20Africa&set_id=1&click_id=13&art_id=vn20080222112349801C434308,
(accessed June 6, 2008).

[21]Human
Rights Watch, 'Bullets for Each of You': State-Sponsored Violence since Zimbabwe's
March 29 Elections, June 9, 2008, http://hrw.org/reports/2008/zimbabwe0608/.

[22] Many reports
from the past few years document Zimbabweans' testimony about their fear of
political violence and intimidation. For a leading report by a South
African-based NGO dealing with Zimbabwean survivors of torture reporting on the
testimony of Zimbabwean victims of civil and political rights violations who
are now in South Africa, see Zimbabwe Torture Victims Project, "Over Our Dead
Bodies: A Story of Survival," June 2006, http://www.zimbabwesituation.com/ztvp_over_our_dead_bodies_0607.doc
(accessed March 3, 2008). For recent Human Rights Watch reports on civil and
political rights violations in Zimbabwe, see All Over Again,Human Rights
Abuses and Flawed Electoral Conditions in Zimbabwe's Coming General Elections,
vol. 20, no. 2(A), March 2008, http://www.hrw.org/reports/2008/zimbabwe0308/; A Call to Action: the Crisis in Zimbabwe,
August 2007, http://hrw.org/backgrounder/africa/zimbabwe0807/; Oral Submission to 41st Ordinary
Session of the African Commission on Human and Peoples' Rights on the Human
Rights Situation in Zimbabwe, August 2007, http://hrw.org/english/docs/2007/05/18/zimbab15968.htm;
Bashing Dissent : Escalating Violence and State Repression in
Zimbabwe, vol. 19, no. 6(A), May 2007, http://hrw.org/reports/2007/zimbabwe0507/; You Will be Thoroughly Beaten, vol. 18,
no. 10(A), November 2006, http://www.hrw.org/reports/2006/zimbabwe1106/.

[25] The terms "mixed
flow" or "mixed migration" are used by agencies such as UNHCR and IOM to
describe a group of people who enter countries at the same time (or even by the
same mode of transport such as boats or trucks) but who have different reasons
for leaving their country. Because some are refugees and others are "economic
migrants" (voluntary or involuntary), the debate surrounding how to deal with
mixed flows is often referred to as the "asylum-migration nexus" debate. In his
opening statement to UNHCR's Executive Committee (ExCom) on October 1, 2007,
Antonio Guteress, the UN High Commissioner, said, "If there is anywhere in the world that best exemplifies the challenges of
the asylum-migration nexus it is South Africa." Notes taken by Human
Rights Watch during ExCom's Opening Session, October 1, 2007. The words are not
reported in the official record of the speech. UNHCR, "Opening Statement by Mr. António Guterres, United Nations High
Commissioner for Refugees, at the Fifty-eighth Session of the Executive
Committee of the High Commissioner's Programme," October 1, 2007,
http://www.unhcr.org/admin/ADMIN/4700eff54.html
(accessed May 1, 2008).

[26] Chapter IX of
the report briefly looks at how difficult it is to obtain such permits. The
permits are provided for in ss. 10-24 of the Immigration Act, 2002, No. 13 of
2002, http://www.info.gov.za/gazette/acts/2002/a13-02.pdf
(accessed March 9, 2008), as amended by the Immigration Amendment Act, 2004,
No. 19 of 2004, http://www.dha.gov.za/legislation_admin.asp
(accessed March 9, 2008), and the Immigration Regulations adopted under the
2002 Act, Immigration Regulations No. R616, June 2005,
http://llnw.creamermedia.co.za/articles/attachments/02112_regulation616.pdf
(accessed April 23, 2008). Together they set the conditions for entry and
residence of all non-nationals who are not asylum seekers or refugees (who are
covered by the 1998 Refugees Act). Immigration Regulation
21(1) establishes Cross Border Permits.

[27]The DHA states that between April 1, 2006, and March
31, 2007, the authorities issued 19,601 "work permits" and 34,360 "visitor's
permits," a slight increase from the year before. DHA, "Annual Report 2006-2007."
These statistics do not include corporate work permits, which tens of thousands
of Zimbabweans working on farms in the border areas and elsewhere use. At the
time of publication there were no statistics available for the post March 2007
period.
Other statistics provide additional limited insight. In December 2007, one of the busiest months of the year, the
Zimbabwe-South Africa border was crossed 95,033 times by Zimbabweans. 89,441 of
these crossings were made by people "on holiday". It is not clear on what legal
basis they enter South
Africa. 1,468 entered on unspecified types
of work visa. The total number of crossings made overland was 83,596. The
statistics do not record the number of different individuals crossing, only the
total number of crossings. Many individuals regularly cross the border and are
counted each time as a new "crossing." Statistics South Africa, "Tourism and
Migration," December 2007, http://www.statssa.gov.za/publications/P0351/P0351December2007.pdf
(accessed March 18, 2008).

[28] Ss. 29 and 30 of
the 2002 Immigration Act, respectively. Although there are a number of grounds
for being deemed "prohibited and undesirable," most relate to criminal
activities.

[29] In 2005 27
percent (7,783) of the total number of claims (28,522) were made by
Zimbabweans. UNHCR, "Statistical Yearbook 2005, Statistical Annex III, Country
Data Sheet for South Africa,"
http://www.unhcr.org/cgi-bin/texis/vtx/statistics/
(accessed March 9, 2008). UNHCR has no figures for the number of Zimbabweans
who contributed to the 32,565 claims in 2004. In 2006 it was 35.5 percent
(18,973 out of 53,361). UNHCR, "Statistical Yearbook 2006", Statistical Annex.
In 2007 it was 38 percent (17,667 out of 45,673). UNHCR News Story, "South Africa
gets 45,673 asylum seekers in 2007, warns of rising numbers," February 26,
2008, http://www.unhcr.org/news/NEWS/47c41c164.html
(accessed March 9, 2008).

[30]If they are granted refugee status they have the right
to remain in South Africa
until it is safe for them to return. If after five years it is still not safe
they are entitled to apply for permanent residence status. Chapter VIII of this
report explains that under South African law, people who have entered South Africa
illegally and who express their wish to claim asylum once inside the country
cannot be deported and must be allowed to lodge their claim at one of the
country's five Refugee Reception Offices.

[31] People with no
permission to stay in South Africa have a wide range
of basic human rights under the South African Constitution's Bill of Rights, including the right to equality, dignity and the right not
to be subjected to violence or to be arbitrarily arrested or detained. Constitution
of the Republic
of South Africa, No. 108
of 1996, http://www.info.gov.za/documents/constitution/index.htm
(accessed March 9, 2008). S. 7(1) of the bill says it "enshrines the rights of all people in our country…" (emphasis
added).

[32] Ibid. S. 7(1)
provides that "all people" in South
Africa have the rights in the Bill of Rights
and the word "everyone" is repeatedly used throughout the bill.

[33] Ss. 9-21 and 32-35. S. 19's political rights only apply to
citizens.

[34] S. 27. Basic
health care in South Africa
is fee-based for South Africans and foreigners alike. Emergency health care is
free; s. 27.3 states that "no one may be refused emergency medical treatment."

[36]The South African Constitutional Court
decided that permanent residents have the same rights as South African citizens
to all forms of social grants (including child support grants, disability
grants, old age pensions, foster care grants, and care dependency grants) as
citizens. Khosa and Others v. Minister of
Social Development and Others, Case CCT, 12/03; and

Mahlaule
and Another v.
Minister of
Social Development and Others, CCT 13/03.

[37] Unless the
visa-holder is or has a child: under s. 28 of the Constitution all children,
irrespective of legal status, are guaranteed a wide range of rights including
"basic nutrition, shelter, basic health care services and social services."
With regards to housing, the National Housing Code explicitly states that
access to housing subsidies is limited to South African citizens and permanent
residents. Jennifer Greenberg and Tara
Polzer, "Migrant Access to Housing in South African Cities,"
February 2008, http://www.migration.org.za
(accessed March 12, 2008), p. 4.

[38]South Africa recognized 241 Zimbabweans as refugees between 2004
and 2006 at the initial status determination stage.UNHCR, "Statistics Yearbooks 2004, 2005 and 2006."At the time of
publication there were no statistics available for 2007.

[39]S. 27 of the 1998 Refugees Act provides that
recognized refugees have all the rights set out in the Bill of Rights.

[40]For the progress
made by South African civil society in seeking to ensure that both refugees and
asylum seekers are more effectively integrated into basic state-funded social
services, see Consortium for Refugees and Migrants in South Africa (CRMSA),
"Protecting Refugees and Asylum Seekers in South Africa," June 2007, http://www.lhr.org.za/documents/CRMSA07Report.pdf
(accessed March 2, 2008), p.42; and National Consortium for Refugee Affairs
(NCRA), "Refugee Protection in South Africa 2006," June 2006, http://migration.org.za/wordpress/wp-content/uploads/2007/10/ncra06.pdf
(accessed March 2, 2008), pp. 47-61.

[41]See Florencia Belvedere, Piers Pigou and Jeff
Handmaker,"Realizing Rights: the
Development of Health and Welfare Policies for Asylum-Seekers and Refugees in South Africa," in Jeff Handmaker, Lee Anne de la
Hunt and Jonathan Klaaren, eds., Advancing
Refugee Protection in South Africa, (New
York: Berghahn Books, 2008).

[42]As noted above, under the national Housing Code only
South African citizens and permanent residents have access to housing related
programs. Jennifer Greenberg and Tara
Polzer, "Migrant Access to Housing in South African Cities,"
p. 4.

[43]The DHA granted
asylum seekers the right to work and study in March 2003 after the Legal
Resources Centre challenged the constitutionality of a government prohibition.
For an overview of ongoing problems in securing work and study, related to the
problematic nature of the asylum seeker's permit that confirms these rights,
see NCRA, "Refugee Protection," p. 36.

[44] "Asylum seekers
with or without a permit" and recognized refugees have these rights: "Revenue
Directive by Department of Health to all Provincial Health Managers and
HIV/AIDS Directorates," September 19, 2007. On file with Human Rights Watch. In
practice this means that anyone, whether or not registered as an asylum seeker,
has a right to access free ART. Whether or not intended, this accords with the
right of "everyone" in South
Africa to access emergency medical care
under s. 27.3 of the Constitution. Both positive developments and continued
obstacles relating to access to medical care are reported in CRMSA, "Protecting
Refugees," pp. 49-51. Further examples of obstacles to access are reported in
Federation International des Droits de l'Homme (FIDH), "Surplus People?
Undocumented and other vulnerable migrants in South Africa," February 1, 2008, http://www.fidh.org/spip.php?article5166
(accessed March 10, 2008), p. 31.

[45]The
submission by the UN High Commissioner on Human Rights to the UN Human Rights
Council ahead of its 2008 review of South Africa's human rights record
notes these problems: "In practice, immigrants and asylum seekers face serious
difficulties in the areas of housing and health care." UN Compilation
of Information on South
Africa for Human Rights Council's Universal
Periodic Review, http://lib.ohchr.org/HRBodies/UPR/Documents/Session1/ZA/A_HRC_WG6_1_ZAF_2_SouthAfrica_compilation.pdf
(accessed March 12, 2008), para 21.

[54] The broadest
survey on foreign nationals' assistance needs, from 2003, focuses on the needs of asylum seekers and refugees: Community
Agency for Social Enquiry, "National Refugee Baseline Study: Final Report," 2003, http://www.lhr.org.za (accessed
March 12, 2008). The two other main reviews of refugees' and asylum seekers'
needs are CRMSA, "Protecting Refugees" and NCRA, "Refugee Protection." See also,
Jennifer Greenberg and Tara Polzer,
"Migrant Access to Housing in South African Cities."

[56] The FMSP
conducted a telephone survey in September 2007 among 29 NGOs assisting
Zimbabweans. After documentation, Zimbabweans identified accommodation as their
most pressing need, followed by work and food. Unpublished findings, available
from Tara Polzer at the FMSP. The
two other leading surveys of Zimbabweans' needs are Daniel Makina, "Survey of
Profile of Migrant Zimbabweans," and Zimbabwe
Torture Victims Project, "Between a Rock and a Hard Place: a window on the
situation of Zimbabweans living in Gauteng, Johannesburg," 2005, http://www.queensu.ca/samp/migrationresources/Documents/Zim_Gauteng_Sept2005.pdf
(accessed March 12, 2008).

[57] Human Rights
Watch interviews in Pretoria,
Cape Town, and Johannesburg, October and November 2007.

[60]Human Rights Watch, confidential
interviews in Cape Town
October 2007. This is also the conclusion of research conducted by the FIDH.
UN, "UN summary of stakeholders' information," February 25, 2008, discussed at
the 15 April 2008 Human Rights Council's review of South Africa under the
Universal Periodic Review procedure, http://lib.ohchr.org/HRBodies/UPR/Documents/Session1/ZA/A_HRC_WG6_1_ZAF_3_SouthAfrica_summary.pdf
(accessed May 31, 2008), para 34. The IOM reports an increase of women and
children passing through its Beitbridge office in 2007. See South African
Red Cross, "Rapid Assessment in Musina and Johannesburg
on Zimbabwean Population Movement into South Africa," August 2007. On file
with Human Rights Watch, p. 4.

[61] Thanks to the
hospitality of MethodistChurch's Bishop, Paul
Verryn, Human Rights Watch conducted many of
its interviews for this report at the Church in November 2007. On the shelter
provided by the Methodist church, see also, Jennifer
Greenberg and Tara Polzer, "Migrant
Access to Housing in South African Cities," p. 8-9.

[64] For overviews of
reports of violence against Zimbabweans by South African citizens that took
place before May 2008, see CRMSA, "Protecting Refugees," pp. 50-51 and FIDH,
"Surplus People?" pp. 34-35. In April 2008, CoRMSA reported on a number of
serious incidents involving killings of foreign nationals and burning of their
property, summarizing the situation as follows: "In the first
three months of the year, community attacks characterized by mob violence have
taken place on foreign nationals in Gauteng, North West, Free State, the Eastern
Cape and the Western Cape resulting in the loss of many lives and destruction
of many people's property." CoRSMA , "Newsletter No. 9," p.1.

[66] United Nations
(UN), "Report of
the Fact-Finding Mission to Zimbabwe to Assess the Scope and Impact of
Operation Murambatsvina by the UN Special Envoy on Human Settlement Issues in
Zimbabwe," July 18, 2005,http://www.unhabitat.org/documents/ZimbabweReport.pdf
(accessed March 3, 2008).

[68] ActionAid's
survey in the aftermath of the evictions found that 70 percent of people who had been working in the informal economy had
lost shelter and 76 percent had lost their livelihoods. ActionAid International,
"Burning down the house to kill a rat?" July 2005, http://sarpn.org.za/documents/d0001397/ActionAid_Zim_July2005.pdf, p. 71 (accessed
March 4, 2008).

[73] Under international law, evictions become unlawful and
thereby "forced evictions" if, among other things, the state responsible for
the evictions fails to provide alternative housing or other means of protection
for those it has evicted. Committee on Economic, Social and Cultural Rights
(ESCR), General Comment 7, http://www2.ohchr.org/english/bodies/ESCR/comments.htm
(accessed March 5, 2008), para 3.

[76]People indirectly affected by the evictions are looked
at below in Chapter VI.

[77] Human Rights
Watch, Clear the Filth: Mass Evictions
and Demolitions in Zimbabwe, September 2005, http://hrw.org/backgrounder/africa/zimbabwe0905/;
and Evicted and Forsaken: Internally
Displaced Persons in the Aftermath of Operation Murambatsvina, vol. 17, no.
16(A), December 2005,
http://hrw.org/reports/2005/zim1205/. UN, "Report of the Fact-Finding Mission
to Zimbabwe."
ActionAid International, "Burning Down the House to Kill a Rat?"

[91]ZANU-PF is Zimbabwe's
ruling party, led under that name by Robert Mugabe since 1988.

[92] This section
draws extensively on evidence and arguments set out by the International Crisis
Group in its report "Zimbabwe's
Operation Murambatsvina," pp. 4-5. In previous reports Human Rights Watch has
referred to this and similar explanations. In Clear the Filth, Human Rights Watch noted at p. 14 that Zimbabwean
human rights lawyers and NGOs argued thatthe evictions "were an act of retribution against those who voted for
the opposition during the… March 2005 elections," or that they "were designed
to prevent mass uprisings against deepening food insecurity and worsening
economic conditions." In Evicted and Forsaken,
Human Rights Watch noted at p. 10 that commentary on ZANU-PF's motivations for
the evictions included "to debilitate the urban poor, force them to move to
rural areas, and prevent mass uprisings against the deteriorating political and
economic conditions in high density urban areas."

[94] Ibid, p.4. The
report goes on to note that "in the wake of recent popular revolutions
triggered by flawed elections in Ukraine, Georgia and Kyrgyzstan and the
condemnation Zimbabwe's elections produced in major Western capitals, the
ruling party may have feared that its foreign critics would more actively
pursue regime change in Harare and that the restive urban population would
provide the tinder."

[95]On the long history of ZANU-PF's politicisation of
food aid, see Human Rights Watch, All
Over Again; The Politics of
Food Assistance in Zimbabwe, vol. 20 no. 2(A), August 2004,
http://www.hrw.org/reports/2008/zimbabwe0308/zimbabwe0308web.pdf; Human Rights
Watch, Not Eligible: the Politicization
of Food in Zimbabwe, vol. 15 no. 17(A), October 2003,
http://www.hrw.org/reports/2003/zimbabwe1003/.

[130] Human Rights
Watch, No Bright Future; Amnesty
International, "Zimbabwe: No justice for the victims of forced evictions," http://www.amnesty.org/en/library/asset/AFR46/005/2006/en/xJ6145eBlYcJ
( accessed April 6, 2008), which refers to an August 2, 2005 Bulawayo High Court ruling that found that street vendors'
stalls had been destroyed indiscriminately and that many street vendors had
permits to trade.

[139] Letter from
Zimbabwean Minister of Public Service, Labor and Social Welfare to all private
voluntary organizations and nongovernmental organizations, June 4, 2008. On
file with Human Rights Watch.

[143] Human Rights
Watch, All Over Again, which
documents that on January 10, 2008, ZESN reported political interference in the
government's farm mechanization program (funded by the Reserve Bank) to
distribute free plows, donkey carts, seeds, and other equipment to farmers. ZESN
also reported that in a number of provinces Zimbabwean farmers were forced to
show loyalty to the ruling party by producing party cards to receive the
equipment and seeds.

[144] Human Rights
Watch, Not Eligible: The Politicization
of Food in Zimbabwe; The Politics of Food Assistance in Zimbabwe;Amnesty
International, "Power and Hunger - violations of the right to food," October
2004, http://www.amnesty.org/en/library/info/AFR46/026/2004
(accessed April 7, 2008).

[157]According to the WHO, countries
should attain a 70 percent case detection rate and 85 percent treatment
success. WHO found that Zimbabwe
had a 41 percent case detection rate and a 54 percent treatment success rate.

[163]South Africa has ratified the 1951 UN Convention relating to the
Status of Refugees (1951 Refugee Convention), 189 U.N.T.S. 150, entered into
force April 22, 1954, and its 1967 Protocol Relating to the Status of Refugees,
606 U.N.T.S. 267, entered into force October 4, 1967, http://www.unhchr.ch/html/menu3/b/o_c_ref.htm
(accessed March 13, 2008), and the 1969 OAU Convention Governing the Specific
Aspects of Refugee Problems in Africa (OAU Refugee Convention), 1001 U.N.T.S. 45, entered
into force June 20, 1974,http://www.africa-union.org/Official_documents/Treaties
(accessed March 13, 2008). These treaties were formally acceded to in January
1996. S. 6 of South Africa's 1998 Refugees Act states that that Act must be
"interpreted and applied with due regard to" these treaties.

[165] This test was
first set out by the Canadian Supreme Court in Canada v Ward, [1993] 2 S.C.R. 689 (S.C.C.) and was endorsed by the
United Kingdom courts inIslam and Shah v. SSHD, [1999] 2 All
ER 545, per Lord Hoffman (U.K. House of Lords, March 25, 1999).

[166] There is no
international court or body that produces refugee law-based judgments that bind
the Contracting Parties to the 1951 Convention. "Refugee law" is made up of the decisions of national courts in states
all around the world who have signed the 1951 Convention. UNHCR also produces
various types of documents which aim to guide those involved in assessing
asylum seeker's claims (civil servants, lawyers, judges). While they are useful
in reinforcing legal arguments, these documents are not binding in law.

[171] UNHCR recognizes
the fact that an accumulation of rights violations can lead to persecution
where individually those violations would not amount to persecution: "an applicant may have been subjected to various measures not in
themselves amounting to persecution (e.g. discrimination in different forms),
in some cases combined with other adverse factors (e.g. general atmosphere of
insecurity in the country of origin). In such situations, the various elements
involved may, if taken together, produce an effect on the mind of the applicant
that can reasonably justify a claim to well-founded fear of persecution on
'cumulative grounds.'" UNHCR, "Handbook on Procedures and Criteria for Determining
Refugee Status under the 1951 Convention and the 1967 Protocol relating to the
Status of Refugees," (UNHCR Handbook), 1992,www.unhcr.org/publ/PUBL/3d58e13b4.pdf
(accessed April 7, 2008). In the case of people targeted by the evictions,
a court could recognize that a non-core violation of the right to work (e.g.
reduction of income to 50percent) and a non-core violation of the right to
shelter (e.g. destroying one property which was used by the owner to gain
income through renting it out and allowing the same owner's second property to
remain) together lead to serious harm. Also, such violations could lead to
further core or non-core violations of other rights, such as the rights to
adequate food, education, and/or health care.

[174] ESCR General Comment No. 4, The Right to Adequate Housing (Art.11 (1)), http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/469f4d91a9378221c12563ed0053547e?Opendocument,
para 4. They are also
incompatible with art. 17(1) of the ICCPR, which recognizes, among other
things, the right to be protected against "arbitrary or unlawful interference"
with one's home.

[175]African
Commission on Human and Peoples' Rights, Decision 155/96, The Social and Economic Rights Action Center and
the Center for Economic and Social Rights – Nigeria (May 27, 2002),
ACHPR/COMM/A044/1, paras. 60-63. The commission found that the combined effect
of Articles 14 (right to property), 16 (right to health) and 18(1) (right to
family) reads into the Charter a right to shelter or housing.

[179] ESCR, General
Comment No. 18, The Right to Work, E/C.12/GC/18,http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/E.C.12.GC.18.En?OpenDocument,
para
31.

[180] ESCR, General
Comment No. 18 para 32 (emphasis added). The South African Refugee Appeals
Board (RAB) has recognized this in relation to Zimbabwean professionals
prevented by the Zimbabwean authorities for political reasons from carrying out
their work. The RAB held that due to his political affiliations with the
opposition, the asylum applicant "would not easily, if at all, secure gainful
employment as a chartered accountant." RAB, Appeal Number 53/2005, 30 November
2004, cited in Michelle Foster, International
Refugee Law and Socio-Economic Rights: Refuge from Deprivation (Cambridge:
Cambridge University Press, 2007), p. 102.

[182] Two UNHCR
documents support this: (i) "Discrimination lead[ing] to consequences of a
substantially prejudicial nature for the person concerned, e.g. serious
restrictions on his right to earn his livelihood…" amounts to persecution.
UNHCR Handbook, para 54. (ii) "…examples of discrimination amounting to
persecution would include, … discrimination with consequences of a
substantially prejudicial nature for the person concerned, such as serious
restrictions on the right to earn a livelihood…." UNHCR, "Guidelines on
International Protection: Religion-Based Refugee Claims under Article 1A(2) of
the 1951 Convention and/or the 1967 Protocol relating to the Status of
Refugees," http://www.unhcr.org/doclist/publ/3d4a53ad4.html
(accessed December 9, 2007), para 17. An example of the "virtually impossible"
scenario is an Australian decision where the court decided that a person who is
denied employment in the public sector and in practice finds it virtually
impossible to find employment in the private sector faces "a denial of the
right to earn a living and constitutes persecution." Reference V94/02820,
Refugee Review Tribunal (Australia),
October 6, 1995, p. 6. Cited in M. Foster, International
Refugee Law and Socio-Economic Rights, p. 98.

[189]ESCR, Substantive Issues Arising in the Implementation of
the International Covenant on Economic, Socialand Cultural Rights, General Comment No. 18, The Right
to Adequate Food (Art.11), E/C.12/1999/5,
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/3d02758c707031d58025677f003b73b9?Opendocument,
para 8.

[194]Human Rights Watch reported on this generalized
failure in 2006.
High user fees for health services and the collapse of the system of social
welfare exemptions for health fees have resulted in thousands of individuals
living with acute and chronic health care needs being turned away from the
health care that they are entitled to, and that the government of Zimbabwe has
committed itself to provide. Zimbabwe's
social welfare programs, designed to provide exemptions for people unable to
pay for medical care and education, fail to protect vulnerable people, such as
those living with HIV/AIDS. Obstacles to obtaining exemptions include extensive
documentation requirements, inconsistent and arbitrary assessment of
applicants, failure to provide information on exemption criteria to those who
might qualify, and geographic variations in the availability of exemptions. The
government's failure to recognize and respond to the collapse of the water
system has led to acute health crises (such as cholera) and imperiled the
health of children, and individuals with chronic health conditions, including
immune suppression. Human Rights Watch, No Bright Future.

[196]Human Rights Watch,
No Bright Future. The report noted
now in Hatcliffe Extension, Harare,
a clinic running a free ART and opportunistic infection treatment program under
the St. Dominican Sisters was destroyed. The Sisters were forced out of the
area, the program was disrupted and as a result a number of PLWHA on the
treatment program were initially unable to access treatment. Others were unable
to join the program because the Sisters scaled down their operations. p. 26.

[198] ESCR, Implementation of the International Covenant on Economic,
Social and Cultural Rights, The Right to Education (Art.13),E/C.12/1999/10,
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/ae1a0b126d068e868025683c003c8b3b?Opendocument,
para 57.

[199]A number of such cases are cited in M. Foster, International
Refugee Law and Socio-Economic Rights, p. 216 at note 270.

[201] Regarding the
cumulative effect of economic and social rights violations, the ESCR Committee
has said that "a State party in which any significant number of individuals is
deprived of essential foodstuffs, of essential primary health care, of basic
shelter and housing, or of the most basic forms of education is… failing to
discharge its obligations under the Covenant." ESCR, General Comment No. 3,
para 10.

[204]This third approach is known in refugee law as "the
predicament approach" because it looks at the predicament in which the asylum
seeker finds herself and not at the intentions of the persecutor.

[205] In addition to
courts worldwide accepting this rule, UNHCR has also accepted that this is the
correct application of refugee law. See UNHCR, "Guidelines on International Protection
No. 1: Gender-Related Persecution within the Context of Article 1(A)(2) of the
1951 Convention and/or its 1967 Protocol relating to the Status of Refugees,"
2002, para 20; and UNHCR, "Guidelines on International Protection No. 7: The
application of Article 1(A)(2) of the 1951 Convention and/or Protocol relating
to the status of refugees to the victims of trafficking and persons at risk of
being trafficked," 2006, para 29. Both documents available at www.unhcr.org/doclist/publ/3d4a53ad4.html
(accessed April 8, 2008). See also, James C Hathaway, "The Michigan Guidelines on Nexus to a Convention Ground," 2001, http://www.refugee.org.nz/Michigan.html
(accessed April 8, 2008), paras 6 to 14.

[206] A comparable
"predicament analysis" would grant refugee status to a gay man whose government
involuntarily commits him to a mental hospital to "cure" him of his
homosexuality or to a woman whose family members subject their unwilling sister
or daughter to genital mutilation without any intension of punishment, but
rather thinking they are helping her by preparing her to be an obedient wife.

[210] UNHCR Handbook, para 125. An expert roundtable convened by UNHCR
broadly endorsed a conclusion that if a refugee is involved in "brief but
repeated visits… to the State of origin…, visits [that] may be for family,
political or economic reasons or a combination" of those reasons then "so long
as the visits are of short duration and the refugee's primary residence remains
the asylum State" there has been no re-establishment. Erika Feller, Volker Turk
and Frances Nicholson, eds., Refugee
Protection in International Law, p. 529. In summary, the experts concluded
that "re-establishment denotes transfer of primary residence… rather than brief
visits." Ibid, p. 541.

[213] Human Rights
Watch, Living on the Margins. The
report documents how the South African authorities have failed across the board
to ensure respect for the legally binding procedures governing asylum
applications as set out in the 1998 Refugees Act.

[214] Violations of
asylum seekers' rights continue despite the fact that the public prosecutor
issued a damning report to the DHA and South African Parliament in October 2004
condemning the numerous shortcomings in the asylum system and making
recommendations to improve the system. For a helpful
review of the prosecutor's report, of the government's failure two years after
the report to implement key recommendations, and of litigation brought by
legal-aid NGOs to force government action, see NCRA, "Refugee Protection," pp. 9-15.

[215] Art. 33(1) of
the 1951 Refugee Convention: "No Contracting State shall
expel or return ("refouler
") a refugee in any manner whatsoever to the frontiers of territories
where his life or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political opinion."
This is reiterated in s. 2 of the 1998 Refugees Act. The prohibition of refoulement is so fundamental that it is
a rule of customary international law. (Customary international law is defined
as the general and consistent practice of states
followed by them out of a sense of legal obligation). ExCom General Conclusion
No. 25 on International Protection, 1982,http://www.unhcr.org/excom/EXCOM/3ae68c434c.html
(accessed April 7, 2008). For more recent joint UNHCR and academic endorsement
of the principle, see "Summary Conclusions of Expert Roundtable, University of Cambridge,
July 2001",http://www.unhcr.org/publ/PUBL/419c76592.pdf
(accessed March 14, 2008).

[217] South African
civil society concluded in 2007 that the current state of the asylum system means that asylum seekers and refugees are being
(unlawfully) deported. CRMSA, "Protecting Refugees," p. 33.

[218]The main written material covering the 2006-2007
period is: CRMSA, "Protecting Refugees"; NCRA, "Refugee Protection"; Lee Anne
de la Hunt and William Kerfoot, "Due Process in Asylum Determination in South
Africa from a Practitioner's Perspective," in Jeff Handmaker, Lee Anne de la
Hunt and Jonathan Klaaren, eds, Advancing
Refugee Protection in South Africa, which helpfully summarizes the weakness
of the system over the past 10 years.

[219] Although there
is no clearly identified reason for this, anecdotal evidence suggests that Zimbabweans prefer not to claim asylum
at the Beitbridge-Musina border post because they fear Zimbabweans secret
service agents who are believed to be in high numbers at Beitbridge (on the
Zimbabwean side of the border) and in Musina (on the South African side of the
border).

[220] The Johannesburg office has
had a number of difficulties. The Rosettenville branch
of the office was closed between April 2005 and January 2006. Following
successful litigation, it re-opened in January 2006. In March 2007 the Crown
Mines branch was opened and in October 2007 the Rosettenville branch closed for
good. The instability of this office has added to capacity problems, above all
in the Pretoria office located 60 kilometers
from Johannesburg, which has had to take over
the cases that would otherwise have been processed in the Johannesburg office.

[221] According to the
DHA, between January 1 and June 30, 2007, one Zimbabwean national claimed
asylum at the Beitbridge border post. DHA Press Statement by Chief Directorate
Communication, "Zimbabwean
Nationals Entering South Africa," August 1, 2007, http://www.dha.gov.za/media_releases.asp?id=419
(accessed April 4, 2008). Confusingly, the same press release stated that on
the basis of the Beitbridge border post statistics, "virtually no people from
Zimbabwe have applied for asylum in this country," despite the fact that DHA
statistics, referred to above, show that 44,423 Zimbabweans claimed asylum in
South African between 1 January 2005 and 31 December 2007.

[222] Referring to
people who have entered South
Africa though an informal border crossing,
regulation 2(2) of Refugee Regulations No. R366 adopted under the 1998 Refugees
Act, states that "any person who entered the Republic and is encountered in
violation of the Aliens Control Act, who has not submitted an application [for
asylum at one of the Refugee reception Offices], but indicates an intention to
apply for asylum shall be issued with a… permit valid for 14 days within which
[time] they must approach a Refugee Reception Office to complete an asylum
application." This is in line with Article 31 of the 1951 Refugee Convention
which prohibits states from penalizing refugees for entering their territory
without passing through official border points.

[223] Also known as a "section 23 permit" because it is described in s.
23 of the 2002 Immigration Act (as amended by s. 24 the 2004 Immigration
Amendment Act). This section only refers to such permits being granted "at a
port of entry," i.e. at a formally recognized border crossing. Regulation 2(2)
of Refugee Regulations No. R366 adopted under the 1998 Refugees Act allows for such a permit to be issued anywhere inside
the country.

[224] S. 21(1) of the
1998 Refugees Act says that "an application for asylum must be made in person…
to a Refugee Reception Officer at any Refugee Reception Office."

[225] CRMSA,
"Protecting Refugees," p. 32. South
Africa's ongoing unlawful deportation practices, in Musina and elsewhere, will be looked
in more detail in later sections.

[229] Also known as a "section 22 permit" because it is described in s.
22 of the 1998 Refugees Act. If passed into law, the 2008 Refugees Amendment Bill would abolish the position of Refugee
Reception Officer and only a small number of their tasks would be given to
Refugee Status Determination Officers. The bill and criticism of the bill's
failure to reallocate most of their tasks can be found in "Parliamentary
Monitoring Group's Summary of Public Hearings on the Refugees Amendment Bill," http://www.pmg.org.za/report/20080325-refugees-amendment-bill-public-hearings
(accessed April 3, 2008).

[230] The three-month
period is not prescribed in any law or regulation. Different offices issue the
permits for different periods of time on an ad hoc basis. The average length is
three months. Human Rights Watch email
exchange with Legal Advice NGO, March 18, 2008.

[231] However, the
Refugee Reception Offices still use an old asylum seeker permit form which
states "employment and work prohibited." These permits were designed before South
African lawyers successfully challenged this prohibition in court in 2003.
Since the lifting of the prohibition, the DHA has failed to produce new
standard forms confirming that employment and work is permitted. Instead RROs
have been manually crossing out the word "prohibited" and adding the word
"granted." When asylum seekers then show the form to prospective employers and
education institutions they are accused of having changed the words themselves
and are, therefore, denied access to work and study. Human Rights Watch
interviews with NGOs in Johannesburg,
October 2007.

[232]CRMSA,
"Protecting Refugees," p. 28. The report confirms that corruption continues to
be a serious problem at the queuing stage of the application process with
people not working for the DHA taking bribes to guarantee access to the inside
of the offices. The report notes that "these agents often appear to work in
collusion with Departmental officials." For an overview of the numbers of
asylum seekers trying to gain access to offices and the low numbers who manage
to get access at any give time, see NCRA, "Refugee Protection," pp. 13-15. See
also, Civil Society Written Submission, "The Documented Experiences of
Refugees," pp. 17-19. For recent reporting on the conditions outside the Cape Town office, see
South African groups have for many years documented the notorious difficulties
of gaining access to these offices, which have also been the subject of
litigation. Joint Submission to SANAC Plenary, "Vulnerable groups: refugees,
asylum seekers, and undocumented persons," pp. 6-7.

[233]This ad hoc practice of specific intake days based on
applicants' country of origin applies to all nationalities but is particularly
obstructive for Zimbabweans who end up in particularly long queues due to their
high numbers. Human Rights Watch email exchange with Legal Advice NGO, March
18, 2008.

[234] S. 23(2) of the
2002 Immigration Act, as amended by the 2004 Immigration Amendment Act.

[235] AT Kearney, "Transforming the
Department of Home Affairs, Refugee Affairs," September 2007, not available
online, on file with Human Rights Watch, p. 18.

[236] S. 33(1):
"everyone has the right to administrative action that is lawful, reasonable and
procedurally fair." S. 33(3): "national legislation must… give effect to these
rights and must… promote and efficient administration."

[239]Tafira v Minister of Home Affairs and
others, High Court of South Africa, Transvaal Provincial Division Case No:
12960/2006. On file with Human Rights Watch.

[240] This was confirmed in interviews with legal practitioners in Johannesburg. Human
Rights Watch interviews, October 2007.

[241] Under s. 34(5)
of the 2002 Immigration Act, the Director General designates locations where
"illegal foreigners" may be detained pending deportation. The LindelaRepatriationCenter, sometimes also
referred to as a "holding facility," is the only center that has been
officially designated by the Director General.

[243] CRMSA,
"Protecting Rights," p. 32. Although the DHA has said that it is trying to
educate its law enforcement partners on the validity of appointment slips (now
replaced by "verbal appointments"), despite such slips having no basis in law,
its message has not filtered through to the ground where arrests and
deportation take place. NCRA, "Refugee Protection," p. 22.

[245] AT Kearney, "Transforming
the Department of Home Affairs," p. 8. An independent process engineer,
contracted by the DHA in December 2006 to review the state of the asylum system
concluded that an additional 180 RSDOs are needed. IQ Businees Group, "Report
on the Process Engineering Findings and Recommendations related to the
Processing and Adjudication of Applications for Asylum received by Refugee
Reception Offices," February 1, 2007, on file with Human Rights Watch, p. 55.

[246] In 2003 the
average waiting time was 18 months. See National Baseline Survey, 2003. Many
applicants are known to wait for years before a decision is taken. Given that
only 10 percent of the total new applications received in 2005 and 2006 were
processed at the initial stage in each of those years, this trend is likely to
continue. DHA, "Annual Report, 2006," and DHA, "Annual Report, 2007." The
independent process engineer report concluded that the average output of an
RSDO per day is 1.5 adjudications. IQ Businees Group, "Report on the Process
Engineering Findings," p. 30.

[247] Human Rights
Watch interview with Abel Mbilinyi, deputy representative
for UNHCR in South Africa, Pretoria, October 31,
2007. UNHCR offered to assist to set up such a unit but the DHA wanted it to be
a fully government-run unit, which it said it would set up at some point in
2008.

[248] All points in
this paragraph are reported in CRMSA, "Protecting Refugees," p. 29.

[249]Human Rights Watch interview with Tjerk Damstra,
Refugees Appeal Board (RAB), Pretoria,
October 18, 2007. Mr Damstra repeated this point during his submission to the
Home Affairs Committee on 25 March 2008: Parliamentary Monitoring Group,
"Summary of Public Hearings."

[253]If, under s. 25(1) of the 1998 Refugees Act, the RSDO
rejects the claim as "manifestly unfounded, abusive or fraudulent" (claims that
are deemed to be clearly false), the file is transferred to the "Standing
Committee for Refugee Affairs" for review. If the committee also rejects the
case, the applicant can appeal to the Refugees Appeal Board (RAB). If the RSDO
rejects the claim without calling it "manifestly unfounded," the claimant can
appeal directly to the RAB. Under South Africa's Refugees Amendment
Bill, due to be approved by Parliament in 2008, the Standing Committee and the
RAB will be merged into a Refugee Appeals Authority which will hear all appeals
lodged by asylum seekers with claims rejected by RSDOs.

[254] Approximately 5
percent of asylum seekers appealing to the Refugee Appeals Board have a lawyer.
Human Rights Watch interview with RAB, Pretoria, October 18,
2007.

[256] This was confirmed
during Human Rights Watch interviews with members of the Refugee Appeal Board, Pretoria, October 18,
2007. In 2005 Human Rights Watch conducted interviews with lawyers at the
Witwatersrand University Law Clinic who stated that although many asylum seekers
do appeal, the majority do not have access to legal representation because they
are unaware of their right to have a lawyer or cannot afford a lawyer or do not
know how or where to find free or low-cost legal assistance. Human Rights
Watch, Living on the Margins, p. 28.

[257]The Refugee Appeals Board currently has four members
who hear cases and who between them heard 827 cases between April 1, 2006, and
March 31, 2007. DHA, "Annual Report, 2007."

[258]South Africa's
First Backlog Project was carried out in 2000 and 2001.

[259] "Statement by
acting deputy director-general: National Immigration Branch on the Refugee
Backlog Project, Pretoria,
April 20, 2006, http://www.dha.gov.za/speeches.asp?id=157.
The project covered cases that had been lodged between 1 April 1998 and 31 July
2005. Broad structural concerns with the way in which the project was conceived
can be found in NCRA, "Refugee Protection," pp. 31-34. For a very helpful overview of both backlog initiatives, see J.
Handmaker, "Starting with a Clean Slate? Efforts to Deal with Asylum
Application Backlogs in South
Africa," in Jeff Handmaker, Lee Anne de la
Hunt and Jonathan Klaaren, eds.,
Advancing Refugee Protection.

[260]DHA, "Statement
on the Home Affairs Director General's First 100 Days In Office," September 4,
2007, http://www.home-affairs.gov.za/media_releases.asp?id=426
(accessed April 9, 2008). The consultancy firm AT Kearny that has been
contracted by the DHA to carry out a Turnaround Strategy reported in September
2007 that by 1 April 2007 the backlog project had processed 34,700 cases (or 31
percent of the total of 111,153 cases). AT Kearney, "Transforming the Department of Home
Affairs," p. 7. In September 2007 the DHA also announced an initiative aimed at
cutting the number of cases to be dealt with by the Second Backlog Project,
effectively requiring all people who had made asylum applications between 1
April 1998 and 31 July 2005 and whose status had not yet been finalized to
resubmit their claim by 31 October 2007. DHA, Public Annoucnement to Refugees
in the Refugee Backlog Project, August 15, 2007, http://llnw.creamermedia.co.za/articles/attachments/07765_notice1008.pdf
(accessed April 23, 2008). The DHA said that a failure to resubmit the claim
would lead to the DHA "revok[ing]their…
permits and all those applicants will be declared illegal in the country." DHA,
"Statement on the Home Affairs Director General's First 100 Days In Office." At
the time of publication the DHA had released no statistics on how many people
resubmitted their claims.

[262]UN Human Rights
Council, Working Group on the Universal Periodic Review, report of the Working
Group on the Universal Periodic Review, South Africa, A/HRC/WG.6/1/ZAF/4,
April 18, 2008, http://portal.ohchr.org/portal/page/portal/UPR/1session/South%20Africa
(accessed April 25, 2008 with username "hrc extranet" and password "1session").

[263]Letter from the Minister of Home Affairs to the South
African Legal Resources Centre, May 29, 2008.

[264] On September 4, 2007,
the Home Affairs Director-General made a statement conflating statistics from
the Second Backlog Project (covering claims made before 1 August 2005) and
statistics on new claims made on or after 1 August 2005. He said that "76,400
applications [are]… still being processed, with the assumption that the
majority have not been submitted by genuine asylum seekers. At the same time
the backlog in refugee processing has grown by 30 percent from 76 000 to 144
000 despite concerted efforts to reduce it." DHA, "Statement on the Home
Affairs Director General's First 100 Days In Office."

[265] According to
figures from theDHA, 47,322
new asylum applications were made between April 1, 2005, and March 31, 2006 (or
an average of 3,943 applications per month). DHA, "Annual Report 2006." Therefore, a rough figure for new applications
between August 1, 2005, and December 31, 2005 (five months), is 19,715. During
the same period (April 1, 2005, to March 31, 2006) the DHA records 4,713
initial decisions being taken (or an average of 392 per month). Therefore, a
rough figure for initial decisions between August 1, 2005, and December 31,
2005 (five months), period is 1,960.

[266] UNHCR,
"Statistical Yearbook 2006, Statistical Annex," http://www.unhcr.org/statistics/STATISTICS/478cda572.html
(accessed March 15, 2008). Overlapping statistics from the DHA for the period
April 1, 2006, to March 31, 2007, record 44,212 new asylum claims. No
statistics were given for the number of initial decisions. DHA, "Annual Report 2006-2007."

[268] See above, page
33, footnote 38. The low recognition rates may in large part be due to the low
number of applications processed each year by the asylum system. Between 1
April 2005 and 31 March 2006, 4,713 applications were "finalized." DHA, "Annual
Report 2005-2006," p. 52. There are no statistics available for the year 1
April 2006–31 March 2007 as the DHA has discontinued its practice of reporting
on the total number of applications "finalized." Instead it now records the
total number of applications "received." DHA, "Annual Report 2006-2007," p. 51.

[270]Human Rights Watch interviews, Cape
Town, Johannesburg, and Pretoria, October and
November 2007.

[271]For a helpful overview of the aims of the Turnaround
Strategy as it affects the asylum system, see NCRA, "Refugee Protection," p. 7.

[272]CRMSA, "Protecting Refugees," pp. 22-23. The report is
referred to above: IQ Businees Group, "Report on the Process Engineering
Findings." A final formal
public report was never published and at the time of publication the DHA has
not reported back to the court.

[273] AT Kearney, "Transforming
the Department of Home Affairs," p. 9.

[283] S. 41 of the
2002 Immigration Act must be read with Regulation 32 of the 2005 Immigration
Regulations which sets out the three ways in which an official can verify
someone's identity. "Taking a person into custody" and "arresting" a person has
the same effect (deprivation of liberty) but is different as a matter of law.
Police officers do not have powers of arrest of non-nationals unless they are
suspected of having committed a criminal offense. S. 34(1) of the 2002
Immigration Act gives immigration officials the power of "arrest" only after
they have established that someone is an "illegal foreigner" (someone in breach
of any part of the 2002 Act).

[288] For a detailed
analysis of the lack of communication, cooperation and coordination between the
police and immigration officers when dealing with transfers of suspected
"illegal foreigners" from the police to immigration officials, see NCRA, "Refugee
Protection," pp. 21-23.

[292]For example, CRMSA, "Protecting Refugees," p. 32; and
Civil Society Written Submission, "The Undocumented Experiences of Refugees," pp.
24-25. Human Rights Watch interviews in October 2007 with a leading public
litigation organization in Johannesburg
established that living conditions continue to be sub-standard. Under South
African law, the South African authorities are bound to comply with basic
minimum standards of detention for immigration-related detainees. Annex B to
Immigration Regulations 2005.

[293]Compilation prepared by the Office
of the High Commissioner for Human Rights, in accordance with paragraph 15(b)
of the Annex to Human Rights Council Resolution 5/1, A/HRC/WG.6/1/ZAF/2, 11
April 2008, http://lib.ohchr.org/HRBodies/UPR/Documents/Session1/ZA/A_HRC_WG6_1_ZAF_2_E.pdf(accessed April 12, 2008), para
20.

[296]Forced Migration Studies Program, "Facts or Fiction?"
p. 6. A new detention facility is being built on the same base and is due to be
completed by the end of 2008. Human rights Watch confidential interview with
South African NGO, April 2008.

[297] CRMSA,
"Protecting Refugees," p. 32. According to Legal
Advice NGOs interviewed in Johannesburg
by Human Rights Watch, this detention center is treated as "an extension" of
the nearby Musina police station. However, the center has not been officially
designated as a center where "illegal foreigners" may be detained pending
deportation.

[298]Only immigration
officials have the power to deport a suspected people found to be "illegal
foreigners." S. 34(1), 2002 Immigration Act. If the police believe someone is
an illegal foreigner, they must transfer that person to immigration officials
within 48 hours or release them. S. 34(2), 2002 Immigration Act. S. 36(1) of
the 2002 Immigration Act, the DHA (and thereby the Immigration Directorate) is
given powers to control the entry and exit of people through South Africa's
borders. The DHA can ask for the assistance of other departments and government
bodies, including the South African Police Service (SAPS) and the South African
National Defense Force (SANDF), but such assistance does not extend to taking
substantive decisions on a person's legal status, only to carrying out
functional tasks such as transporting deportees. Immigration officials can
verify a person's status anywhere. It does not have to be done in a detention
centre. The Immigration Inspectorate has recognized this and has issued a
directive to immigration officers requiring that verification of identity be
conducted before a person is detained. NCRA, "Refugee Protection," p. 23.

[302] CRMSA,
"Protecting Refugees," pp.
32-33. The report notes that in 2007 non-nationals are increasingly being held
at a number of prisons that are not designated by the director general of the
National Immigration Branch as centers to hold people being detained for
immigration offenses. In addition to the detention center in Musina, the report
cites the prisons at Pollsmoor(Western Cape) and Westville (KwaZulu-Natal).

[308]Zimbabweans returning to South Africa immediately after they
have been deported is not a new phenomenon. Southern African Migration Policy (SAMP),
"Making Up the Numbers: Measuring 'Illegal Immigration' to South Africa," Migration Policy
Brief No. 3 (SAMP 2001), p. 12. For this and other SAMP publications, http://www.queensu.ca/samp/sampresources/samppublications/
(accessed March 10, 2008).

[310] In late 2006 the
IOM reported that 8 percent of deported Zimbabweans interviewed in November
told IOM that they had suffered some kind of sexual assault either during the
border crossing from Zimbabwe
to South Africa
or during deportation. The report does not break down this percent into
non-sexual physical assaults and sexual assaults. Unknown individuals are
reported to have committed 57 percent of non-sexual assaults during the
crossing from Zimbabwe into South Africa
while the South African police or military are reported as having committed the
remainder. The IOM report does not report sexual assaults having been committed
by the South African police or military. As a result all sexual assaults are
presumed to have been committed by criminals during the border crossing. IOM
"Beitbridge Second Migration Survey," p. 10. In mid-2007 IOM Beitbridge told
South African researchers that they were recording a high number of incidents
of rape of Zimbabwean women on the border, some of whom had filed rape charges
at the IOM office. FMSP, "Facts or Fiction?" pp. 7-9.

[312] For overviews of
reports of violence against Zimbabweans by South African citizens that took
place before May 2008, see CRMSA, "Protecting Refugees," pp. 50-51; and FIDH,
"Surplus People?" pp. 34-35. In April 2008 CoRMSA reported on a number of
serious incidents involving killings of foreign nationals and burning of their
property, summarizing the situation as follows: "In the first
three months of the year, community attacks characterized by mob violence have
taken place on foreign nationals in Gauteng, North West, Free State, the Eastern
Cape and the Western Cape resulting in the loss of many lives and destruction
of many people's property." CoRSMA, "Newsletter No. 9," p.1.

[313] For examples of
arbitrary arrest, intimidation and requests for bribes by South African police,
see Civil Society Written Submission, "The Undocumented Experiences of
Refugees," pp. 20-24.

[314] The South
African Minister of Home Affairs has recognized that deporting Zimbabweans does
not work and is a waste of resources: "Mapisa-Nqakula says it is a waste of
money to keep deporting people as the majority of them return within a few days." SABC News, "SA seeks
solution to deal with Zim citizen influx," August 28, 2007, www.sabcnews.com/africa/southern_africa/0,2172,154857,00.html
(accessed March 15, 2008).

[316]IOM in Beitbridge, Zimbabwe, reports that 48 percent of Zimbabweans
interviewed post deportation in November 2006 told IOM that they intended to
return without documents to South
Africa within three months. IOM, "Beitbridge
Migration Survey, results form the second survey of deportees receiving
humanitarian assistance in Beitbridge,
Zimbabwe, 8-28
November 2006." On file with Human Rights Watch. The South African Red Cross,
reporting in August 2007, says that the IOM told it that this now stood at 70
percent. South African Red Cross, "Rapid Assessment in Musina and Johannesburg," p. 4.

[319] On undocumented Zimbabweans working on farms and the
general problem of farm workers being paid less than the minimum wage, see
Human Rights Watch, Keep Your Head Down, pp. 55-59 and 79-86, and Unprotected Migrants, pp. 38-41.

[320]Section 10 of the 2002 Immigration Act states that "a
foreigner may enter and sojourn" in South Africa "only if in possession
of a temporary residence" and that sections 11-24 set out the types of "temporary
residences" available.

[323] Most Zimbabweans coming to South Africa
are skilled or semi-skilled. With a passport they can enter under the corporate
permit system (s. 24, 2002 Immigration Act, Regulation 18, 2005 Immigration
Regulations), to work on farms, or they enter on a three-month visitor's
permit, which does not allow them to work. A visitor's permit involves a
deposit of 2,060 South African Rand (SAR), approximately US$250, which is
prohibitively high for most. The small number of highly skilled Zimbabweans
coming to South Africa
can apply for a general work permit, in which case they must produce a signed
contract of employment and a letter from the prospective South African employer
explaining why a South African citizen could not fill the position. Regulation
16(4), 2005 Immigration Regulations. Alternatively they can apply for a quota
work permit which is only available to people who fall within specific skilled
professions identified by the DHA, such as economists, engineers, agricultural
science technicians, and a limited number of teachers (1000). See the DHA's
quota work permit schedule, referred to above. Finally, Zimbabweans who live,
work, and trade in the immediate border areas can obtain cross-border permits.
Regulation 21, 2005 Immigration Regulations.

[324] For a
comprehensive overview of the options available to the government, discussed at
a meeting between the DHA, UN agencies, and South African civil society groups
from the NGO and academic world, see FMSP, "Responding to Zimbabwean Migration
in South Africa – Evaluating Options," November 28, 2007, http://migration.org.za/wp-content/uploads/2008/03/zimresponses07-11-27.pdf
(accessed March 18, 2008). Some of these options only cover specific groups
such as facilitating the recruitment of the highly skilled.

[327] No African
government or court has ever explicitly used the "events seriously disturbing
public order" phrase to declare a group of persons to be refugees. Micah Bond
Rankin, "Extending the limits or narrowing the scope? Deconstructing the OAU
refugee definition thirty years on," UNHCR Working Paper No. 113, April 2005, http://www.unhcr.org/research/RESEARCH/425f71a42.pdf
(accessed March 22, 2008).

[331]SADC has 13 members, nine of which (Botswana, the Democratic Republic of Congo, Lesotho,
Namibia, Mozambique, South
Africa, Swaziland,
Tanzania and Zimbabwe)have signed the protocol. http://www.sadc.int/english/documents/legal/protocols/facilitation_of_movement.php
(accessed March 21, 2008). The protocol will only enter into force 30 days
after two thirds of SADC member states have ratified the protocol in accordance
with their national constitutional procedures and have lodged their
ratification documents with the SADC secretariat. At the time of writing, only Botswana, Mozambique,
and Swaziland
have done so.

[336]The term is a proposal from Human Rights Watch and is
not language contained in South African immigration legislation.

[337]A "permanent resident" has all the rights of a South
African citizen, as broadly set out in South Africa's Bill of Rights, except for the
right to vote in South African elections and the right to make use of a South
African passport.

[338]Ss. 26 and 27 set out the rights to housing and to
health care, food, water, and social security.

[339] These are the
rights in sections 9-25, 27(3) and 28-35 of South Africa's
Bill of Rights.

[340]S. 32(1)(b)(ii) provides that the minister "may… for
good cause, withdraw such rights."

[341] According to
official statistics recording entry at border posts, the vast majority of
Zimbabweans cross into South
Africa overland. Statistics South
Africa, "Tourism and Migration." In December
2007 87 percent of Zimbabweans entering South Africa did so by road. Because
it is impossible to enter informally through an airport, those entering South Africa
through informal border crossings enter overland.

[342]Current asylum procedures (Form BI 1590) require
applicants to answer a series of questions on the country of which they claim
to be a citizen, includingcapital city, major cities, currency, languages
spoken, religion, political parties and leaders, neighboring countries,
description of the national flag and national anthem.

[343] As noted in Chapter VII, many of the problems
currently faced by asylum seekers in South Africa flow from the fact that there
is no computer record of their application which could otherwise be easily
accessed, for example in case of mistaken arrest, and from the fact that
documentation proving asylum seeker status consists of a flimsy piece of paper
which easily gets lost or destroyed.

[345] Art. 1(F) of the 1951 Refugee Convention makes clear
that the only people who are not protected by the Convention are people who are
known to have committed serious crimes such as war crimes or crimes against
humanity. The Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, however, categorically prohibits the return of anyone
to a place where torture is likely. The Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, adopted December 10, 1984, G.A. res.
39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984),
entered into force June 26, 1987, http://www.unhchr.ch/html/menu3/b/h_cat39.htm
(accessed 7 May, 2008).

[347]The most recent comprehensive government survey
concludes that unemployment fell to 23 percent in the third quarter of 2007.
Statistics South Africa,
"Labour Force Survey," September 2007, http://www.statssa.gov.za/publications/P0210/P0210September2007.pdf
(accessed May 31, 2008).